ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

 

C.P. No.D-237 of 2013

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Date                            Order with signature of Judge

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PRESENT:          MR. JUSTICE SYED HASAN AZHAR RIZVI

     MR. JUSTICE ARSHAD HUSSAIN KHAN         

 

 

DATES OF HEARING 22.03.2018, 19.04.2018,

09.05.2018 AND 24.05.2018

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Mr. Mohammad Vowda advocate for petitioners.

Rao Sarfaraz Ahmed advocate for respondent No.2.

Mr. Usman Shaikh advocate for respondent No.3.

M/s. Muhammad Haseeb Jamali and Yasin Morai advocates for respondents Nos.4 & 5.

 

Mr. Miran Muhammad Shah Addl. A. G.

Mr. Asadullah Lashari, State Counsel.

 

J U D G E M E N T

 

Syed Hasan Azhar Rizvi J;  -          By way of this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners have challenged the illegal commercialization of Plot No.C-27, Block-17, Scheme No.16, F.B. Area, Karachi, so also amalgamation of Plot No.C-26, Block-17, Scheme No.16, F.B. Area, Karachi with aforesaid plot (hereinafter referred to as the “Subject plots”) on the ground, inter alia, that the commercialization and amalgamation had not been done in the prescribed manner in terms of the then prevailing Karachi Building Control and Town Planning Regulation, 1979, the mandatory requirements and procedures have not been followed and numerous written complaints lodged by the residents of the vicinity and the petitioners pending before the competent authorities against the purported commercialization/amalgamation of the subject plots were not taken into consideration and purportedly the official respondents commercialized the subject plots. Admittedly the previous owners of the subject plots applied for the withdrawal of the amalgamation plan of the subject plots with plot No.C-26, such permission was accorded by the competent authority through letter dated 11.01.2007 (available as annexure “G” at page-173 with MoP) and that plot was restored to its original position.

 

2.         Following prayers have been made by the petitioners:-

“(a)     Declare that the Commercialization of Plot No.C-27, Block No.17, KDA Scheme No.16, F.B. Area, Karachi measuring 650 square yards., is unconstitutional, without jurisdiction, illegal, malafide and of no legal effect.

 

(b)       Declare that the Approved Building Plan dated 05.11.2012 (Annex “I-1 & I-2” of Plot No.C-27, Block NO.17, KDA Scheme No.16, F.B. Area, Karachi, measuring 650 square yareds and all related/connected building documents, are unconstitutional, without jurisdiction, illegal, malafide and are cancelled and are of no legal effect.

 

(c)        Declare that the Provincial Ombudsman Order dated 30.12.2005 (Annex “F-3” is without jurisdiction, illegal and of no legal effect;

 

(d)       Direct the respondents No.1 to 3 to demolish the construction on Plot No.C-27, Block NO.17, KDA Scheme No.16, F.B. Area, Karachi, measuring 650 sq. yds., made in pursuance of Approved Building Plan dated 05.11.2012.

 

(e)        Permanently restrain the respondents No.4 and 5, or any persons or employees acting under them, from carrying out any commercial activity, or engaging in any commercial construction [on the basis of but not limited to the Approved Building Plan dated 05.11.2012], on Plot No.C-27, Block NO.17, KDA Scheme No.16, F.B. Area, Karachi, measuring 650 sq. yds.;

 

(f)        Permanently restrain the respondents No.4 and 5, or any persons or employees acting under them, from creating any third party interest in pursuance of any commercial construction [on the basis of but not limited to the Approved Building Plan dated 05.11.2012], on Plot No.C-27, Block NO.17, KDA Scheme No.16, F.B. Area, Karachi, measuring 650 sq. yds.;”

3.         The brief facts leading to this petition are that the petitioners being the residents of Scheme No.16, Block-17, F.B. Area Karachi where the subject plots are situated, have pleaded in the petition that the area in question is meant for residential purpose only but despite oppositions from numerous numbers of the public in the neighborhood of the subject plots including petitioners, the then Karachi Buildings Control Authority (K.B.C.A.) vide letter dated 09.02.1998 issued N.O.C. for conversion of the subject plots from residential to commercial. Thereafter, the Shehri N.G.O., on the complaints of the residents of the area in question agitated the matter before the concerned authorities whereupon the Director General, K.D.A. through letter dated 08.12.1999 raised serious objections against the illegal conversion of the subject plots from residential to commercial and directed that said conversion shall be immediately cancelled and submit detailed report in the matter and SBCA through Noting dated 1999 stated that owner has been directed to submit N.O.C. from complainants and through further Noting dated 1999 stated that at present no conversion/commercialization has been allowed.

 

4.         Then again it came in the knowledge of the petitioners that in purported pursuance of the learned Provincial Ombudsman’s order dated 30.12.2005, the C.D.G.K. through letter dated 10.06.2006 had processed the commercialization of the subject plots, which was opposed by the residents. But despite of such objections/oppositions the respondent No.2 issued N.O.C. dated 21.02.2012, allowed the respondents No.4 and 5 to advertise and sell shops and flats on the subject plots without approved building plan. Thereafter, building plan of the subject property was approved through letter dated 05.11.2012 for a commercial building comprising basement + ground + 8 upper floors, which was again objected by the residents including the petitioners and action was taken by the then Director General of Sindh Building Control Authority and processed the such complaints and by letter dated 28.11.2012 the respondent No.2 directed the respondents No.4 and 5 that no further constructions be raised at the site till the decision of the competent authority. Said letter/notice dated 28.11.2012 was assailed  by the respondents No.4 and 5 by filing a Suit bearing No.1646 of 2012 wherein none of the petitioners was made party and the respondents No.4 and 5 in collusion with respondent No.2 obtained an interim order from this Court. Respondents No.4 and 5 then started raising constructions of a illegal commercial building on the subject plots, hence this petition was filed for redressal of their grievance.    

 

5.         We have heard learned counsel for the parties at length and carefully perused the material available on record and case laws relied upon by the respective counsel with their assistance.

 

6.         Learned counsel for the petitioners submits that the commercialization of the subject plots is in violation of the then prevailing Karachi Building and Town Planning Regulations, 1979 and other buildings bye-laws as neither any order was passed on the numerous complaints and objections raised by the residents of the area in question nor they were called and heard. Learned counsel for the petitioners further contends that the decision of the Ombudsman Order dated 30.12.2005 is patently illegal and mala fide for the reasons that observation regarding commercialization of the subject plots have been made without an application of mind and without an examination of the detailed facts and law as the main dispute before the Ombudsman was about the rates of commercialization and not commercialization itself and any order passed regarding commercialization of the subject plots cannot override the Constitution as well as mandatory provisions of law. Learned counsel for the petitioners further argued that the mandatory condition to call for the public objections before commercialization of the plots in question was not fulfilled. He further urged that the entire locality of Scheme No.16, Block-17, F.B. Area, Karachi where the plot in question is situated is purely residential and uptill now no commercial multi-storeyed building has been constructed in its vicinity, therefore, if construction of subject multi-storeyed commercial building is allowed without check the same will open a floodgate of similar buildings, therefore, to nip in the bud, the construction of the buildings on the subject plots be stopped at the initial stage. Learned counsel further submitted that the commercialization of the subject plots has not been done by the respondents strictly in accordance with law, therefore, this Court has jurisdiction and powers as provided under Article 199 of the Constitution to ensure the enforcement of mandatory provision of Karachi Building and Town Planning Regulations and other prevailing laws. He has relied upon the cases reported in 1999 SCMR 2089, 2014 PLC CS 820, 2013 PTD 486, PLD 1995 Lahore 572 and 1999 MLD 3050.   

 

7.         Learned counsel for the respondents No.4 and 5 contended that the present petition suffers from laches as the subject plots was commercialized in 1998 and this petition was filed in 2013 but the petitioners have failed to satisfy on the such point therefore, they are not entitled for any relief. Learned counsel further submitted that the construction on the subject plots was raised strictly in accordance with approved building plan and building bye-laws. Learned counsel for the respondents No.4 and 5 further contended that the respondents No.4 and 5 are exclusive owners of the subject plots and they processed the case of commercialization of the subject plots in accordance with law and after complying with all codal formalities including payment of requisite fee through challans got commercialized the subject plots. The petitioners with malafide intention and ulterior motives filed instant petition in order to blackmail and intimidate the respondents No.4 and 5. He prayed for dismissal of instant petition. Learned counsel has placed reliance upon the cases reported in 2011 SCMR 1023, PLD 2012 SC 774, PLD 2015 SC 212, 2017 MLD 1391 and 2012 SCMR 1000.

 

8.         Learned counsels appearing on behalf of respondents No.2 and 3 as well as learned Addl. A. G. and State Counsel adopted the arguments advanced by the learned counsel for the respondents No.4 and 5 and fully supported the respondents' case on the ground that all the acts performed by K.B.C.A., K.D.A. and CDGK have been made according to the law, rules, byelaws and regulations, therefore cannot be questioned by the petitioners.

 

9.         We have considered the above arguments in the light of the record and the cases referred to by the learned counsel for the parties.      

 

10.       In the case of Muhammad Siddique and another versus Federation of Pakistan reported in 2013 SCMR 1665, it has been observed that :-

“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. Satisfaction of the learned High Court, while hearing the petition and on having seen the documents, calls for no interference and perhaps this is the reason that alternate argument was raised namely that the KBTPR, 2002 were applicable w.e.f. 4-4-2002 when the same were published in the Sindh Government Extraordinary Gazette. Learned High Court had taken notice of this fact that alleged permission of conversation has been obtained in the year 1991, therefore, this promulgation would not be applicable with retrospective effect. Hence, under the circumstances, we are of the opinion that learned High Court had rightly placed reliance on KBTPR, 1979, in view of the facts and circumstances noted hereinabove as before the Court no other alternate argument in respect of application under Article 40(4), (5) and (6) were made. Alternatively, if this case has to be examined at the touchstone of Article 40(4), (5) and (6) of the KDA Order, conditions laid down therein have also not been fulfilled because as per the conclusion of learned High Court on the factual side, the publication was not made in the leading newspapers. As far as Karachi Development Authority Order (V of 1957) is concerned, it has also been repealed vide Sindh Development Authority Laws (Repeal) Ordinance, 2002.

Be that as it may, examining the case of the petitioner from all possible angles noted hereinabove, we feel no hesitation in holding that division of the plot by Master Plan Environmental Control Department, Karachi Development Authority and allowing the conversion of the same vide letter 31-3-1992 is contrary to the provision of regulation 26, Schedule D, clauses 3 (a)(b)(c)."

 

11.       To elaborate the procedure/necessities of the commercialization / amalgamation of a plot it would be appropriate to reproduce Regulations 26, Clause 3 in Schedule-D, of the Karachi Building and Town Planning Regulations, 1979, which reads as follows:-

 

26.    For the sub-division, amalgamation and change of land use in the approved schemes and other areas, the criteria laid down in Schedule ‘D’ shall be followed.

 

SCHEDULE-D

 

3.         No change of land use or conversion of Amenity, Utility and other plots as defined in sub-section 2(a) through 2€, 2(h), 2(i), 2(j) part 1 of Schedule ‘G” earmarked in the layout plans of any housing scheme, prepared by any local body, housing society or by any private developer, shall be allowed except in accordance with the following procedure:-

 

            (a)       ……………

`           (b)       The Commissioner shall, on receipt of such an application under sub-section (a), invite objections from the general public through a notice published in one English and One Urdu leading local daily newspaper. The period for filing objections with the Commissioner shall be 30 days from the date of the publication of the notice, which should also be mentioned in the notice.

           

            (c)       ……………

 

            (d)       …………….

 

            (e)       The Commissioner shall after considering the objections received under sub-section (b) and hearing such persons as he may consider necessary, shall forward his recommendations alongwith the application and other connected papers to Government for orders.

 

            (f)        The Commissioner, shall also consult MP&EC (Authority constituted under S.B.C. Ordinance, 1979) and the Concerned Authority, before submitting his recommendations to the Government under sub-section (e).

 

12.       It has been settled by now that commercialization / amalgamation / sub-division of any plot by allowing change of land use is a prerogative of the official respondents (Government Functionaries) and such powers cannot be interfered but only if all the laws, rules, byelaws and regulations issued from time to time in this regard by the competent authority have been complied with. The only requirement for the commercialization / amalgamation of any plot by allowing change is Public Notice publish in one English and one Urdu leading daily newspaper calling for the objections of the people of the vicinity who can be effected on this account but no such public notices were ever issued before alleged commercialization. In this case the residents of the same vicinity where subject plots is situated including petitioners as well as Shehri N.G.O. filed numerous complaints against the commercialization of the subject plots and objected the change of land use on each and every moment but they were neither heard nor any order/decision was passed on their complaints and illegally and malafidely subject plots was commercialized, which is in violation of provision referred to above. Complaints of the residents are enclosed alongwith instant petition as annexures “E-1 to E-10, F & F-1”.

 

13.       A perusal of annexures “I” and “I-1” and “I-2” shows that no objection certificate for sale and advertisement of shops and flats for the project “Mirani Residency” on Plot No.C-27. Block-17, F.B. Area, Karachi was issued on 21.02.2012 (annexure “I”) and building plan was approved on 05.11.2012 after about 08/09 months (annexure “I-1 and “I-2”), which also supports the case of the petitioners. A perusal of the Provincial Ombudsman’s order dated 30.12.2005 shows that the main issue before the Ombudsman was with regard to payment of differential of conversion fee already paid by the respondents No.4 and 5 and the Ombudsman was of the view that conversion should be made without recovery of differential amount when fee has already been paid and any order passed regarding commercialization of the subject plots cannot override the Constitution as well as mandatory provisions of law.

 

14.       In the case of Messrs Excell Builders and others versus Ardeshir Cowasjee and others reported in 1999 SCMR 2089 the Honourable Apex Court has observed that the conversion of a residential plot on a main road into a commercial plot is warranted on account of the change in the situation would not justify the violation of any provision of any law or building bye-laws or regulations, nor it would warrant grant of permission for a high-rise building. The Government, or the Authority concerned is under obligation to decide the question of number of floors keeping in view the extent of availability of utility services like water, electricity, gas, sewerage lines, streets and roads in the locality involved and the permission for construction of a proposed building should be of minimum floors which may cause minimum inconvenience and discomfort to the residents of the locality. In the present case admittedly the road where the subject plots are situated is non-commercial and area in question is purely residential and no high-rise building is situated on the said non-commercial road. The official respondents have failed to establish that they called objections from the residents of the area in question as provided under the law before commercialization of the subject plots through two local daily newspapers one English one Urdu, which is a mandatory requirement of law and even nothing has been brought on record to prove that the complaints/objections made by the residents of the area including petitioners were decided by the competent authority or they were called and heard before impugned commercialization.

15.       Case laws relied upon by the learned counsel for the respondents, in our humble opinion, are distinguishable from the facts and circumstances of the present case as such the same are not applicable.

16.       Since the learned counsel for the respondents No.4 and 5 on 09.05.2018 filed a statement in this petition (while the case was fixed for arguments) alongwith “Memorandum Evidencing Changes of Commercialization in Previously Registered Lease Deed & other Documents in respect of Plot No.C-27, Block-17, measuring 650 Square Yards, Scheme No.16, Federal “B” Area, Karachi” bearing Registration No.4533 dated 14.11.2014, M.F. Roll No.U-83578/9738 dated 27.11.2014. Photocopy of the same is enclosed alongwith statement. Moreover, respondents No.4 and 5 have already filed a Civil Suit bearing No.1646/2012 in this Court for declaration and permanent injunction without impleading the petitioners as party, who are the owners/occupants of the plots situated in the same vicinity where subject plot is located, which is still pending in this Court. Keeping in view the factual position of the matter and in the interest of justice, this petition is hereby disposed of in the following terms:-

(i)         Till decision on merits of the Suit No.1646/2012 referred to above, the respondents No.4 and 5 are restrained from raising any construction and/or utilizing the subject plot for any commercial purpose and also status-quo should be maintained till disposal of the aforementioned suit. However, the petitioners in this petition may approach to the learned Trial Court for impleading themselves as party in that suit and it is expected that the learned Trial Court should examine their application in accordance with law and decide the suit on merits expeditiously.

(ii)        The petitioners are at liberty to seek cancellation of the registered instrument i.e. “Memorandum Evidencing Changes of Commercialization in Previously Registered Lease Deed & other Documents in respect of Plot No.C-27, Block-17, measuring 650 Square Yards, Scheme No.16, Federal “B” Area, Karachi” bearing Registration No.4533 dated 14.11.2014, M.F. Roll No.U-83578/9738 dated 27.11.2014, photocopy of which has been filed on 09.05.2018 by the learned Counsel for the Respondents No.4 and 5 alongwith an statement.  And in the event if any proceeding is filed the same may be heard and decided alongwith aforementioned suit already filed by the respondents No.4 and 5 strictly in accordance with law.

    

      J U D G E

 

 

Karachi

Dated : _______________                                                      J U D G E