ORDER
SHEET
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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