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Petitioner: Mrs. FARIDA and others VS Respondent: NEW ALLIED ELECTRONICS INDUSTRIES (PVT.) LTD. JUDGMENT
Court Name: Sindh High Court Judge(s): Anwar Zaheer Jamali, Zafar Ahmed Khan Sherwani Title:Mrs. FARIDA and others vs NEW ALLIED ELECTRONICS INDUSTRIES (PVT.) LTD.
JUDGMENT
Reported As: 2009 YLR 1896 Result: Petition dismissed Judgment JUDGMENT ' ZAFAR AHMED KHAN SHERWANI, J.--By way of this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) the petitioners have challenged the NOC(s) issued by the respondents Nos. 3, 4 and 5 in favour of the respondents Nos. 1 and 2 dated 16-10- 2006 with regard to permission for commercialization of the Plot No,F99 Block-7, KDA Scheme V Khyban-eRoomi, Clifton Karachi (the plot in question) on the ground, inter alia, that the commercialization had not been done in the prescribed manner in terms of the Karachi Building Control and Town Planning Regulation, 2002. It has also been prayed by them that the respondents Nos.1 and 2 may be restrained from constructing a high-rise building on account of which the rights of privacy and life of neighbouring residents would be jeopardized. 2. The brief facts leading to this petition are that the petitioners being the residents of Block-7 Clifton, where the plot in question is situated, have pleaded in the petition that the entire scheme in Block-7 Clifton is meant for residential purpose only, therefore, such lease deeds have been executed in respect of such plots except, those plots, which were originally reserved for commercial purpose. However, the respondent No,5 exercising its power under section 192(2), 5th Schedule Part-II Clause (3) of the. Sindh Local Government Ordinance, 2001 approved the change of land use and master planning byelaws 2003 (commercialization policy) vide resolution No,383, dated 6-1- 2004 and gazetted it for general information vide resolution CDGK/MPGO/ 2004/142, dated 12-2- 2004, therefore, the petitioner moved an application, dated 4-5-2004 to the respondent No,2, raising objection with regard to conversion of the plot in question from residential to commercial with the specific objection on the construction of 8 storeyed building, apprehending nuisance and
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increase of problems of sewerage, water and electricity for the residents of the entire block-7 Clifton, Karachi Consequently, a notification was issued by the District Coordinator Officer of the respondent No,5, dated 6-10-2005 being No,DCO/CDGK/413/2005 stating therein that further byelaws were made vide resolution No,659 adding into resolution No,383 commercializating amongst other road No,12 Khyaban-e-Roomi passed by City District Council. 3. In reply to the letter, dated 4-5-2004 the respondent invited signatories of the letter through a notice, dated 8-5-2004 for the meeting to be held on 18-5-2004. In the meeting about fifty residents including an organization namely, shehri attended the hearing and submitted their objection for the conversion of the land use of the plot in question on account of the commercialization policy. The objectors raised their objections including that the construction of the plot in question which has residences behind it, besides a Jamatkhana, and on account of commercialization there would be serious congestion of traffic, problem in supply of water, and electricity. Similarly, the peace of mind of the residents would be affected. Moreover, the people attending the Jamatkhana would be deprived of their privacy on account of the high-rise building. The respondent No,3 considered the said arguments on the issue and rejected the commercialization plan. However, till 16-10-2006 nothing was heard when an NOC form was discovered allowing the building plan on the plot in question. Consequently a letter, dated 7-4- 2007 adressed to the relevant authorities signed by the residents, raising the objection on the commercialization, was submitted but to no avail until 9-5-2007, when the residents of block-7 were invited by the Governor of the Province to discuss the problem on 14-5-2007, however, on account of the disturbances in the city on 12-5-2007 the meeting could not be held. 4. Upon checking the record, it came to the notice of the petitioners that respondent No,4 had already given no objection certificate to the respondent No,1 for high rise building (Project HQ) vide letter No, KBCA/DCD(D-1)2137/Adv. 383/2007, dated 1-6-2007. Notice, dated 4-9-2007 was also published by the respondent No,3 with regard to the said NOC. 5. It is also the case of the petitioners that on 2-7-2007 a Public warning had been published in the newspaper by the respondent No,4 informing that the Clifton blocks 1-7 were purely for residential purposes and commercial activity could not be allowed. In spite of that the NOC, contrary to the said notice was issued. On account of this the petitioners as well as the other residents of the Block-7, Clifton wrote a letter to Home Minister and others high ups with regard to illegal commercialization but the same remained unattended. 6. It has been pleaded by the petitioners that the commercialization of the plots is required to have approval of the government under regulation 18-5 1.1 of the Karachi Building and Town Planning Regulations, 2002 and indeed the respondents Nos. 3 and 5 were empowered to make by laws as provided under section 192 of the Sindh Local Government Ordinance, 2001, but that power being of general in nature could not ignore an express requirement of approval of the Government of Sindh. The resolutions Nos.383 and 659 as referred to above, passed by the respondent No,3 should have been in the light of the commercialization policy made by the master plan Environment Control Department with the approval of the Government of Sindh. It is also the case of the petitioners that this method as prescribed in the regulation was not adhered to hence this bye-law is deficient in the authority, therefore, is ultra vires and has no legal effects. Consequently, the commercialization of the plot in question and NOC are illegal. The petitioners have also highlighted in the petition that on account of the said high rise building how the basic amenities and the infrastructure of the area including traffic flow would be affected, hence this petition. 7. Along with the petition the petitioners also submitted an application under Order XXXIX Rule 1 and 2 C.P.C. Praying therein to restrain the respondents Nos.1 and 2 from constructing building on the plot in question during the pendency of the petition. In support of the application the petitioner No,1, Mrs. Farida, has filed her affidavit adopting the contents of the petition. In reply to this, one Mian
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Pervaiz Akhtar, the Chief Executive of the respondent No,2 has filed his counter affidavit wherein initially legal objections were taken with regard to maintainability of the petition under Article 199 of the Constitution on the ground that the petitioners are not the aggrieved persons which is sine qua non for maintainability of a petition under Article, 199 of the Constitution. It has also been pleaded that the petition suffers from laches because the alleged action highlighted in the petition is several years sold and the petitioners did not assail the same during this long period. An objection with regard to the availability of the alternate remedy of filing an appeal as provided under Reg. 49 of the Karachi Building and Town Planning Regulations, 2002 has also been raised. He also challenged the facts mentioned in the petition and averred that the NOC was issued subject to the various conditions as stipulated therein. These conditions were fulfilled including the provisions of minimum car parking space of one floor. Thereafter, no objection from survey of Pakistan, Government of Pakistan, Civil Aviation Authority, approval of the architectural Plan from respondent No,4 were obtained and then the respondent No,4 vide letter, dated 1-6-2007 "No Objection Certificate" for sale and advertisement of office for the Project "HQ" on the plot in question after the provisions of bank guarantee was granted. Public notices were also published on 4-9-2007 in all the newspapers. Finally the proposed building plan was submitted for construction of the multi storeyed building providing ample car parking space, well beyond the minimum Mandatory requirement, comprising basement, and five car parking floors, which is a unique example in Karachi. It has also been pleaded that the respondent No,1 paid a handsome amount of Rs,23.67 million towards different charges which will be spent for developing and bringing about the improvement in the infra structure and environment. He has also mentioned the details of the plots of different properties which are being used for commercial purpose in block-7, Clifton including multi storeys building, schools, government offices and commercial arcade in the vicinity of the plot in question. It has been pleaded that the commercialization of the plot in question was made in accordance with law, rules and regulations, denying the allegation that the project after construction would, cause nuisance or problems in the provisions of the basic amenities. With regard to public warning as published in different newspapers in respect of the commercial activities, it has been pleaded by him that this was only in respect of the plots which were being used for commercial purposes, without first changing the designated use of the plots. It has also been pleaded that the regulation No,18-5 1.1. Of Karachi Building and Town Planning Regulations, 2002 has been complied with as the plot in question was not commercialized on individual basis but after declaring that the designated use of the properties situated on Khyban-e-Roomi and certain other roads were permitted to be changed after approval of the Government of Sindh by publication in the Sindh Government Gazette and thereafter the respondents applied to the concerned authorities for the change of land use and after payment of required charges and then the Building Plan was duly approved. 8. On behalf of the respondent No,4 (KBCA) one Abdul Wahab Memon. Deputy Controller of Building, KBCA filed his counter affidavit and supported the case of the private respondents pleading therein that the owner of the plot in question submitted a building plan for basement + 19 upper floors which was scrutinized as per regulations of 2002 and after approval of the competent authority such letter, dated 3-9-2007 was issued. It was reiterated that no violation of any bye-law or rule or regulations has been committed, therefore, the petition is liable to be dismissed. 9. One Irfan Ahmed Qureshi, the Additional District Officer CDGK, the respondent No,5 has filed his counter affidavit supporting the case of the two private respondents. It was pleaded that a public notice, dated 21-4-2004 was published in the leading newspapers calling for public objections, consequently the Nazim UC 10, Saddar Town heard the complaints and vide resolution No,3, dated 5-6-2004 necessary NOC was issued with the condition that members of the Union Council have no objection for the commercialization of the subject plot provided Khyaban-e-Roomi is declared
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open for commercialization. On 26-6-2005, City District Council vide resolution No,659 declared the said Khyaban-e-Roomi open for change of land use along with the three other roads and the CDGK being the lessor of the land confirms the ownership of the said plot in favour of the owner and after completion of all the legal formalities and the realization of the conversion fee, the permission was granted. With regard to the apprehension of the petitioners about the adverse effects on the infrastructure on account of the construction of the project, it has been stated that it is provided in the change of land use/conversion policy of City District Government, dated 6-1- 2004 vide sections 4-8 that 37.7% of the revenue generated by the conversion/change of land use will be utilized in the same locality of converted plot with the consent of the UC Nazim and 37.5% revenue will be used for the development work in the other remaining agencies and 10% will be used for development work of other areas. With regard to non-compliance of the regulations 18-5 1.1 of Karachi Building and Town Planning Regulations, 2002 it was asserted that comprehensive policy for the change of land use has been envisaged by the City District Government vide City Council's resolution No,383, dated 6-1-2004 under section 192(2) Schedule 5 Part-II clause-(3) of SLGO-2001. The Government, now CDGK at present is competent authority to modify the rules and regulations in the public interest. The commercialization policy announced by the CDGK and notified by the Government of Sindh on large scale is legal and lawful. Commercialization of the plot in question has been made by the CDGK through competent authority, EDO, Master Plan Group of Offices (MPGO) in accordance with the gazetted commercialization policy approved by the City District Council Resolution No,383, dated 6-1-2004 and No, 659, dated 27-6-2005 after charging the commercialization fee amounting to Rs,1,71,12,000. 10. One Yaseen Bora has filed his affidavit-in-rejoinder in which the contentions raised by the fespondent No,3 were denied. 11. We have heard the learned counsel for the parties and perused the record. 12. The learned counsel for the petitioners built up their case mainly on the following points:-- (1) That the mandatory condition to call for the public objections before commercialization of the plot in question was not fulfilled in letter and sprit. (2) That the entire locality of Block-7 Clifton where the plot in question is situated in residential area and uptill now no commercial multistoreyed building has been constructed in its vicinity, therefore, if construction of this 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 first building be stopped at the initial stage. (3) That the commercialization of the plot in question has not been done by the respondents strictly in accordance with law, therefore, this Court invoking the powers as provided under Article 199 of the Constitution to ensure the enforcement of mandatory provision of Karachi Building and Town Planning Regulations, 2002. (4) That if the construction of this building is allowed the residents of its nearby vicinity including Agha Khani Community, Jamatkhana of which is situated adjacent to the plot in question, would be seriously affected with reference to their inalienable right of worship guaranteed by the Constitution. (12A) Elaborating these points one by one by the learned Counsel for the petitioners submitted on the first point that the respondent No,S exercising the powers under section 192(2) of 5th. Schedule Part- II Clause(3) of the Sindh Local Government Ordinance, 2001 had approved the change of land use and Master Plan Bylaws 2003 (Commercialization Policy) vide Resolution No, 383, dated 6-1- 2004 which was gazetted on 12-2-2004, in response to that the petitioners moved an application with the respondent No,2, dated 4-5-2004 and submitted objections on the conversion of the plot in question from the residential to commercial and highlighted the possible negative effects in the provision of Infra structure including the basic amenities for the residents of the area on account of
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the construction of multi storeyed building but in spite of hearing of these objections by the respondent No,S, who had given an oral undertaking that commercialization would not be allowed, but it was allowed surreptitiously on the basis of a notification issued by DCO, the respondent No,5, dated 6-10-2005 bearing A No, DCO/ CDGK/412/ 2005 in which it was mentioned that further bylaws were made vide resolution No,659 adding into the resolution No,383 in respect of the commercialization amongst others, Road No, l2 Khyaban-e-Roomi by the City District Council. He contended that since the petitioners/objectors. Were never communicated about the result of the hearing of the objections by the respondent No,3, therefore, it cannot be said that public objections were demanded and disposed of according to the spirit of these provisions. He contended that the objectors were under the bona fide impression that the commercialization would not be allowed therefore the act of the respondents appears to be mala fide on which account the commercialization can be nullified by this Court. He relied upon the cases reported as 1999 SCMR 2883, PLD 2007 SC 472, PLD 2006 Karachi 63 and 2006 YLR 2637. 13. Replying the above arguments, the learned counsel for the respondent No,l contended that , the petitioners have concealed the material facts from this Court with mala fide intentions and referred the counter affidavit filed by Mr. Irfan Ahmed Qureshi, Assistant District Officer of CDGK in which the process of commercialization of the plot in question has been described to the effect that on 16-4-2004 the respondent No,l had applied for change of land use of the plot in question to the MPGO, CDGK in the prescribed application form (Annexure A of the counter affidavit), since the plot was situated on the declared commercial road i.e, Khyaban-e-Roomi and the respondents had fulfilled all the formalities, therefore, public notice was published in the two leading newspapers the daily Nawa-e-Waqt and the Nation, dated 21-4-2004 calling upon the public objections and subsequent to hearing of the complaints in reply of the public notice the Nazim UC- 1Q Saddar town vide Resolution No,3, dated 5-6-2004 issued necessary NOC with condition that the commercialization of the subject plot is allowed subject to Khyaban-e-Roomi is declared open for commercialization and accordingly . On 27-6-2005 through resolution No,659 as admitted by the petitioner the City District Council declared Khyaban-e-Roomi open for change of land use along with three other roads and the said resolution was gazetted in the notification, dated 18-7-2005 (Annexure B of the counter affidavit). He contended that no illegality has been committed by the respondent in commercialization of the plot in question or even declaring the change in land use. The lst. Counsel submitted that now - it is settled that the CDGK which have -stepped into shoes of the Karachi Development Authority being lessor of the plot in question is fully competent to allow the change of land use which cannot be interfered by this Court . Under the provisions of Article 199 of the Constitution subject to no violation of any * law, Rule or Regulation has been committed. He has relied upon the case reported in 2005 SCMR 1967. 14. It may be mentioned here that on behalf of the respondent No,1 Mr. Faez Isa Advocate argued the matter whereas Mr. Mushtaque Memon the learned counsel for the respondent No,2 and Mr. Manzoor Advocate for the CDGK adopted his arguments and fully supported the respondents' case on the ground that all the acts performed by CDGK have been performed according to the law, rules, byelaws and regulations, therefore cannot be questioned by the petitioners. 15. We have considered the above arguments in the .Light of the record and the cases referred to by the learned counsel for the parties. 16. It has been settled by now that commercialization of any plot by allowing change of land use is a prerogative of the respondent, CDGK 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 of any plot by allowing change public notice calling for the objections of the people who can be effected on this account and in this case it has been admitted by the petitioner that these objections were
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demanded by the respondents, which were filed by residents including some of the petitioners and were accordingly heard. It also appears from the record specially from the contents of the affidavit of Irfan Ahmed Qureshi, Assistant District Officer, Master Plan Group of Offices, CDGK that this requirement has been fulfilled before allowing the commercialization by the respondent. Even their grievances were to be heard by the head of the Province i.e, the Governor on 14-5-2007 but the petitioners could not reach for the meeting on account of disturbances in the city on 12-5-2007. Mere fact that any formal communication was not made by the respondents in this regard cannot be a ground to interfere by this Court in the functions of an independent statutory body, under its constitutional jurisdiction. In the case of Jawaid Mir Muhammad, PLD 2007 SC 472, the hearing of public objections after start of construction of the commercial building was treated as compliance of such mandatory requirement. 17. On the second point, the learned counsel for the petitioners has referred copies of the photographs produced along with the petition as annexure L-1 to L-6 to show the vicinity of the plot in question and submitted that the commercial multi storeyed building as shown in different photographs are situated quite far from the plot in question. He also submitted that the photograph produced by the Chief Executive of the respondent No,1 as annexures 0-1 to 0-25 are of those buildings which are not situated in the vicinity of the plot in question but these photographs have been produced to mislead the Court. In reply to these arguments, the learned counsel for the respondent No,1 again referred the counter affidavit of the Chief Executive of the respondent No,1 in which details of these commercial buildings including multistoreyed buildings have been provided and submitted that in most of the buildings commercial activities are being performed, therefore, it cannot be said that the building of the respondent No,1 would be the first building of commercial nature in Block-7, Clifton. 18. On careful consideration of the the submission of the 1st. Counsel of parties and perusal of the record, we are of the view that the all the controversies in this regard reflect factual controversies. It is a matter of fact the entire Clifton area has commercial and multi storeyed buildings and still new one are being raised in order to cope up the situation on account of growing business activities in the locality and influx of better off sector population from the nearby areas of Karachi, however, without involving such factual controversies it can be held that even if the project of the respondents No,1 is first of its kind in the area where the plot in question is situated this Court cannot interfere in such activity in its writ jurisdiction. Moreover, the learned counsel for the petitioners has failed to show dictum laid down by the Court in this regard to emphasize that the Courts should discourage commercialization of any part of the city of Karachi or any building or to stop construction of such buildings at the inception even if the same are being constructed in accordance with law, byelaws, rules and regulations. The only guideline provided by the apex Court, which can be used as touchstone by the Courts to examine whether construction of any multistoreyed commercial building in the residential area, after conversion of residential plot into commercial are the cases of Abdul Razzak, PLD 1994 512, Ardesir Cowasji, 1999 SCMR 2883 and Jawad Mir Muhammad, PLD 2007 SC 472 and in none of these cases such directions have been given. It is matter of observation that whenever there is approval of any plan of construction of any commercial building and as soon as the construction starts the unscrupulous persons involve its owner and developer in unnecessary litigation which does not only stop the project but the finances also remain unutilized increasing the cost of the loan, the cost of construction burdening the small businessm an. On account of this not only the genuine business activities are hampered but the wheel of progress is also stopped. This is one of the causes of slow pace of foreign investment in building sector in this country, whereas in other parts of the world including Malaysia or even in India the construction of high rise buildings is the panacea for the problem of shortage of space in Metropolitan cities. We are therefore, of the view that Courts are required to examine
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the issues raised in such cases very carefully to discourage frivolous litigation and to provide room to the public functionaries to discharge their functions independently according to law. ' In view of the above discussion this point is decided accordingly. 19. The third point on which the 1st. Counsel for the petitidners vehemently contended that although it was the prerogative of the CDGK to approve the…
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