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Petitioner: A. Razzaq Dawood and others VS Respondent: Messrs Urban Properties Builders and JUDGMENT
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan, Adnan-ul-Karim Memon Title:A. Razzaq Dawood and others vs Messrs Urban Properties Builders and
JUDGMENT
Reported As: 2022 CLC 209 Result: Order accordingly Judgment JUDGMENT IRFAN SAADA T KHAN, J.---- Since common grounds and cross objecti ons are agitated in these petitions they are heard and disposed of by this common judgment. The lead petition bearing CP No.D-953 of 2015 relates to the issue of amalgamation of two Plots No.F-16 and F-17 Dawood Cooperative Housing Society , Scheme No.7, Gulshan-e-Iqbal, Karachi (henceforth 'subject Plots') and its commercialization in a residential area, beside other grounds which are discussed in the later part of this judgment. 2. The petition bearing No.953 of 2015 has been filed on the ground that the petitioner is residing in a property bearing No.F-15, Scheme No.7, Dawood Cooperative Housing Society, which is claimed to be a purely residential property, which the petitioner purchased vide lease deed dated 14.02.1979 duly registered with the Registrar. It is claimed by the petitioner that adjacent plots bearing Nos.F-16 and F-17, owned by the respondents Nos.1 to 9, are also residential properties and have illegally been declared as commercial properties hence it is prayed in the instant petition that the project, namely, "Urban Twin Tower" being constructed on the above referred two plots may be declared to be illegal and unlawful, being constructed in an illegal and unlawful manner and in violation of the relevant rules and bye-laws and regulations. It is also prayed that the said two properties and other adjoining properties, being residential in nature, have illegally been declared as commercial hence the said declaration may be termed as illegal and uncalled for. It is also prayed that all the actions done by the respondents in converting the above residential properties into commercial are to be declared as null and void and as non-operative and the employees, subordinates and agents of the respondents may be restrained from constructing the above referred project and also to restrict the
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respondents, their agents, representatives, employees and subordinates to deal in selling the properties to third parties and to carry out other commercial activities on these projects. 3. Before unpacking the questions raised on behalf of the parties on the subject issue, it may be observed that all the said questions have already been set at naught by the Hon'ble Supreme Court through various authoritative pronouncements. However , learned coun sel for the parties insisted on the decision on merits. Accordingly , full opportunity was afforded to all of them on several dates of hearing to make their respective submissions. In the above circumstances, we deem it appropriate to record their submissions in this judgment as under . 4. M/s. Sharjeel Akram Shaikh Advocate has appeared along with Mr. Abba d-ul-Husnain Advocate, for the petitioner and stated that the conversion of the residential plots into commercial was illegal and uncalled for. They , while elaborating their 'viewpoint, stated that while commercializing the above plots various building laws, codes, rules and regulations have been violated by the respondents Nos.1 to 9 (the private respondents). They stated that the conversion of the residential plots into commercial would have a negative impact on the privacy of the persons residing in the vicinity and hence would have a negative environmental impact as well. They stated that there would also be problems with regard to parking and other utilities. They further stated that the construction of these high- rise buildings would be an imminent danger to the aeroplanes flying in the vicinity as, according to them; airport is not far away from this project. They further stated that violation of relevant laws and rules of Sindh Building Control Authority (SBCA), Civil Aviation Authority (CAA) and Pakistan Air Force (PAF) have also been violated by the respondents while constructing the said property or making the proposed constru ction plan hence they pray that firstly the conversion of the plots from residential to commercial may be declared as illegal; secondly the amalgamation of the two plots is also illegal; thirdly there is a violation and deviation in approved building plan and fourthly the building is also a threat for an incoming and outgoing aeroplanes, being a high-rise building. 5. So far as the issue of commercializatio n is concerned, the learned counsel stated that the said plots have been converted from residential to commercial without fulfilling the legal and codal formalities. They stated that the plots are located in Dawood Housing Cooperative Society and No Objection Certificate' (NOC) has not been obtained from the said Society for converting the properties from residential to commercial. They further stated that the conversion was also without the consent of other members. The learned counsel also invited our attention to Regulation No.18-5.1.1 of the Karachi Building and Town Planning Regulations (KBTPR-2002) to show that residential plots could be converted into commercial after fulfilling the commercialization policy . According to the learned counsel the said commercialization policy has not been followed. They further invited our attention to Regulation No.18-4 to show that no residential property could be converted into commercial without the approval of MP&ECD which condition in the instant case, according to them, has not been followed. They further stated that since due process of converting a residential property into commercial has not been followed hence the process of commercialization was ab-initio void and illegal. They further stated that the other procedures for converting the plots from residential to commercial, as given in the Sindh Local Government Ordinance (SLGO) vide Sections 39(A)(C), 40A and 192(1) have also not been followed. They further submitted that Karachi Metropolitan Resolution No.383 dated 06.01.2002 has also not been followed. They further stated that Byelaw No.9 relating to Master Plan also has not been followed and the requir ements with regard to sending applications to Union Council and MPG on prescribed format also has not been followed. In support of the above arguments, the learned counsel have placed reliance upon the following judgments: i) Mst. Ummatullah through Attorney v. Province of Sindh through Secretary Ministry of Housing and Town Planning, Karachi and 6 others ( PLD 2010 Karachi 236 ) ii) Dr. Raheela Magsi v . Province of Sindh through Chief Secretary and 2 others ( 2013 CLC 1420 ) iii) Khawaja Ahmad Hassan v . Government of Punjab and others ( 2005 SCMR 186 ) iv) Civil Petition No.815-K/2016 (by the Hon'ble Supreme Court of Pakistan) v) Abdul Razak v . Karachi Building Control Authority and others ( PLD 1994 SC 512 ) vi) Ahmad Javed Shah v . Lahore Development Authority (1996 CLC 748) vii) Lahore Grammar School (Pvt.) Ltd. v . Mst. Hameeda Begum and another (1996 PLD Lahore 442)
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viii) Muhammad Jabal and another v. Direc tor General, Lahore Development Authority and another (1995 CLC,1881 ) ix) Mrs. Shamim Rizwan v . Province of Punjab and others ( PLD 1997 Lahore 580 ) 6. They further argued that the amalgamation of the plots was in violation of the KBTPR Regulation No.18.3.2 as, according to the learned counsel, as per the said Regulation the amalgamation is only possible upto maximum of 1200 square yards, whereas after the amalgamation the area of the two plots would come to 2000 square yards, which is not inconsonance with the permissible area as given in the above Regulation. They further attacked the NOC issued by the Sindh Building Master Plan Department dated 13.03.2014 and stated that as per the said NOC after amalgamation the plots would be used "as per its original allotment /lease conditions". They stated that as per the original allotment /lease conditions the plot could only be used for residential purposes but the private respondents in utter violation of the said NOC' and the conditions as prescribed by the relevant laws have converted the residential property into commercial hence, according to the learned counsel, they have violated the terms of the NOC. The learned counsel further read out clause 8 of the said NOC that in case of violation of items 6 and 7, which talks about the original allotment /lease conditions, the amalga mation permission shall stand cancelled automatically . They stated that the private respondents since have violated the NOC hence their amalgamation permission has stand cancelled automatically , therefore, the private respondents may be restrained permanently from raising any construction on the said residential plots. The learned counsel further stated that even the NOC issued by the SBCA dated 25.03.2014 has also not been followed by the private respondents wherein similar condition was imposed by the SBCA to utilize the property for residential purposes but the private respondents have brushed aside the said NOC and after amalgamating the two plots have started doing commercial activities on a residential property. They further stated that the conditions 4, 6 and 8 of the NOC issued by the Master Plan Department also have been violated by the private respondents. The learned counsel then read out those conditions to augment their submissions. They further submitted that even the clauses (8) and (11) of the lease agreement dated 27.05.2013 between the City District Government Karachi (CDGK) and the respondents have been violated wherein it has categorically been mentioned that the property would exclusively be used for residential purposes only . 7. The learned counsel next invited our attention to the alleged violations in respect of the sanctioned building plan. They stated that the NOC has not been obtained by the private respondents with regard to height restrictions from CAA and PAF. It is stated that the permissible limit for construction is 107 square feet, whereas 'Tower A' comprises of 196 square feet, whereas 'Tower B' comprises of 174 square feet. According to the learned counsel it is very much evident that the height of the building, if allowed to be constructed would be in violation of permissible height limit, as prescribed by the official respondents. They stated that though NOC was obtained from CAA but that NOC, according to them, is not in accordance with the law and is in contradiction with the permissible limit as prescribed by the PAF. The learned counsel further stated that as many as four inspections were carried out by the Nazir of this Court wherein in each report flagrant violations with regard to construction have been noted down by the Nazir , however , it is surprising to note that no action has been taken by the official respondents to clear /remove those objections /violations. The learned counsel in this regard pointed out towards various violations detected on the ground floor and other floors with regard to Compulsory Open Space (COS) and other violations. They stated that even the SBCA has issued various Show Cause Notices the private respondents in this behalf but no heed was paid by the respondents to remove those violations /illegalities /irregularities. They invited our attention to all the four Nazir's reports to strengthen their arguments. In support of their above arguments the learned counsel have placed reliance upon the following decisions: i) Ardeshir Cowasjee and others v. Karachi Building Control Authority (KMC), Karachi and others (1999 SCMR 2883 ) ii) Hussain Bux Memon and another v. Karachi Building Control Authority through Chief Controller of Buildings and others ( 2015 YLR 2448 ) iii) Farooq Hamid and others v . L.D.A and others ( 2008 SCMR 493 ) iv) Mst. Yawar Azhar W aheed (Deceased) through LRs v . Khalid Hussain and others ( 2018 SCMR 76 )
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v) Messrs Continental (Pvt.) Limited v. Government of Sindh through Secretary , Housing Town Planning Department, Karachi and another ( 1996 CLC 417 ) vi) Abdul Razak v . Karachi Building Control Authority and others ( PLD 1994 SC 512 ) vii) A. Razak Adamjee and another v. Messrs Datari Construction Company (Pvt.) Limited and another (1991 MLD 1112) viii) Hameed Akhtar v . Member (Colonies), Board of Revenue, Punjab, Lahore and another ( 2005 YLR 998 ) ix) Messrs Continental (Pvt.) Limited v. Government of Sindh through Secretary , Housing Town Planning Department, Karachi and another ( 1996 CLC 417 ) 8. Mr. Abdul Rehman Advocate has appeared on behalf of the private respondents (respondents Nos.1 to 9) and at the very outset stated that no illegality and irregularity has been committed by the said respondents. He stated that so far as commercialization of the plots owned by the said respondents is concerned the whole Stadium Road has been declared as a commercial road by the Karachi Municipal Corporation (KMC) vide order dated 29.05.2013. The learned counsel also invited our attention to various Gazette Notifications in respect of this claim. He next submitted that the commercialization was duly authorized to the then Administrator of KMC, who has full authority under Section 179A of the SLGO Ordinance, 2001. He stated that the said Adminis trator has exercised his powers with regard to change of and use as per the relevant laws and Master Plan Byelaws, 2003 to declare and convert any residential property into commercial. He stated that all necessary legal requirements regarding issuance of public notice and issuance of Gazette Notifications etc. have duly been fulfilled by the said respondents. The learned counsel next submitted that under Article 4 of the Karachi Development Authority Order , 1957 the Governing Body of KDA has the authority to unilaterally declare plots on the declared roads from residential to commercial and in respect of his above contention he placed reliance on the following decisions: i) Abdul Razak Adamjee and another v. Director General, Karachi Development Authority and others (1995 MLD 803) ii) A. Razzak Adamjee and another v . Messrs Datari Construction Company (Pvt.) and another ( 2005 SCMR 142 ) iii) Jawad Mir Muhammadi and others v . Maroon Mina and others ( PLD 2007 SC 472 ) iv) Ardeshir Cowasjee and 4 others v . Clifton Cantonment Board and 20 others ( 1998 MLD 1818 ) v) Irfan and others v . - Karachi Building Control Authority and others ( 2005 CLC 694 ) vi) Capt. S.M. Assam and others v. Karachi Building Control Authority through Chief Executive Nazim-e-Aala and others ( 2005 CLC 759 ) vii) Sheikh Naeem Ahmed and others v . Province of Sindh and others ( 2006 CLC 1231 ) viii) Arshad Abdullah and others y. Government of Sindh through Secretary , Housing and Town Planning Department and others ( 2006 YLR 3209 ) ix) Muhammad Hanif v . Sameena Sibtain and 8 others ( 2007 YLR 31 13) x) Mrs. Zunaira Khan through. Attorney v. Federation of Pakistan through Secretary Mainstay of Petroleum and Natural Resources and others ( 2008 YLR 1701 ) xi) Zahid Saeed and others v . City District Government, Karachi and others ( PLD 2010 Karachi 218 ) xii) Zainab Garments (Pvt.) Ltd. and others v . Federation of Pakistan and another ( PLD 2010 Karachi 374 ) xiii) Nighat Jamal v . Province of Sindh and others ( 2010 YLR 2624 ) xiv) Muhammad Nasir and 7 others v. Government of Pakistan through Ministry of Housing and Town Planning, Islamabad and 6 others ( 2014 CLC 1666 ) (xv) Salim Godil and others v . Province of Sindh and others ( 2014 CLD 222 ) xvi) Amber Alibhai and others v . Muhammad Ghulam Jan Muhammad and others ( 2016 MLD 1208 ) 9. The learned counsel next submitted that the CAA has no power to impose height restriction as the said powers rests with the Federal Government. He then invited our attention to Section 6A of the CAA Ordinance, 1960. In support of his contention, the learned counsel has placed reliance on the decision in the case of Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others (PLD 2016 SC 808). He further stated that the Federal Government was required to issue notification empowering the CAA with regard to height restriction but since there is no such notification issued by the Federal Cabinet,
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therefore, the CAA, in his view, has no jurisdiction to either instruct the SBCA or to act unilaterally with regard to the height issue. In support of his contention, the learned counsel has placed reliance on the decision given in the case of Government of the Punjab, Food Departm ent and another v. Messrs United Sugar Mills Ltd. and another (2008 SCMR 1 148) 10. The learned counsel next attacked the Civil Aviation Rules, 1994 and stated that CAA only has the authority with regard to safeguarding of aerodrome but has no authority to regulate the height of the building which, in his view, rests with SBCA and in support thereof has placed reliance on the decision given in the case of Khawaja Ahmad Hassaan v . Government of Punjab and others (PLD 2004 SC 694 ). 11. The learned counsel further stated that there is no deviation the approved plan and stated that the SBCA has supported his version that apart from minor deviations, which are compoundable and regularizable, there are no major deviations which would entail the whole project as illegal. He stated that the amalgamation process has been made as per clause 18-3 of the KBTPR and there is no violation in this regard. He also stated that change of land use has duly been mentioned under Regulations 18-4 and 18-3 of KBTPR, which have been followed by the respondents. 12. The learned counsel next submitted that it is not only the plots owned by the private respondents which have been declared as commercial but the whole road, which includes the plot owned by the petitioner as well, which has been declared as commercial by the concerned authorities, therefore, acco rding to the learned counsel, it could not be presumed that any favour has been taken by the private respond ents or something which is not permissible under the law has been granted to them. He next submitted that the issues regarding COS and parking ramp have been regularized by the SBCA Authorities and the contention of the petitioner in this regard is misplaced. He next submitted that there are four reports of the Nazir; the first report is that of 31.05.2015, the second report is that of 18.02.2016, the third report is that of 03.08.2016 and the fourth report is that of 25.08.2016 and all these four reports are in favour of the private respondents duly mentioni ng that no violation of any law, either with regard to commercialization, amalgamation or construction of the building beyond the approved building plan have been found by the Nazir . However, so far as the permissible height limit is concerned, he stated that even on this issue the CAA supports the stance of the private respondents. He in the end submitted that the petition has been filed with mala fide intention by the petitioner and no illegality or irregularity has been committed by the private respondents in making construction upon the two plots, hence, the instant petition being bereft of any merit is liable to be dismissed with heavy cost. 13. Mr. Iqbal Khurram Advocate has appeared on behalf of the KMC /respondents Nos.20, 21 and 22 and stated that both these plots were allotted as residential property and at no point of time permission was accorded by their department for commercialization of the said plots. He further stated that as per their record these plots have been allotted as residential and if the private respondents have obtained NOC or permission from other government departments for commercialization, in his view, that is not in accordance with law and as per their record even today the plots are considered as residential properties and only residential activiti es could be carried out on these plots and construction on these plots could only be made for residential purposes. He, therefore, supported the stance of the petitioner and stated that the petition may be allowed as prayed. So far as the issue of amalgamation of the two plots is concerned, he stated that their department has given permissi on for amalgamation of the two plots but has never given any permission for commercialization of the same hence on this aspect also the learned counsel supported the Stance of the petitioner and on this issue stated that, the amalgamation process has been carried out by their department in accordance with law . 14. Mr. Waleed Khanzada Advocate has appeared on behalf of the Water and Sewerage Board /respondent No.17 and stated that as per the record of their department the properties have been registered as commercial and the permission for sewerage and water has been given for the use of commercial activities but they will abide by whatever decision is given by this Court. 15. Mr. Dhani Bux Lashari Advocate has appeared on behalf of the SBCA /respondents Nos.10 to 13 and stated that his department has no concern with regard to whether the building is residential or commercial but is concerned regarding construction raised on the said two plots. He stated that no doubt some violation or
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irregularities were detected on the said plots but; firstly those violations/irregularities are within permissible limit and secondly whatever illegal construction has been raised by the respondents have either been demolished or Show- Cause Notices for removal of those illegal construction have timely been given to the private respondents hence, according to him, his department has taken due action regarding the violation /irregularity committed by the private respondents. He stated that allowable height for both the towers is 107 square feet and if any construction is being raised by the private respondents beyon d this point that would be a matter between the CAA and PAP and the private respondents and his department has got nothing to do in this behalf. 16. Mr. Khurram Ghayas Advocate has appeared on behalf of the Sindh Master Plan Department and stated that the entire Stadium Road site starting from Plot. Nos.F-14 to F-22 has been declared as commercial vide Notification dated 07.06.2013, after fulfilling all codal and legal formalities, hence, according to him, no illegality with regard to commercialization of the properly has been committed by his department and the entire lane starting from F-14 to F-22 since has been declared as commercial hence the claim of the petitioner that these two plots have illegally been declared as commercial is incorrect and uncalled for as these two plots along with other plots have been declared as commercial after fulfilling all the legal and codal formalities as provided under KBTPR and other rules and regulations, hence, this petition being meritless is liable to be dismissed with heavy cost. 17. Mr. Ali Safdar Depar , AAG has appeared on behalf of the respondents Nos.14, 15, 16, 23, 24, 25, 26 and 27 and stated that it is a matter between the petitioner and the private respondents whereas government departments would like to add that if the plots are residential and have illegally been declared as commercial, appropriate action ought to have been taken against the private respondents in this behalf. 18. Dr. Shahnawaz Advocate has appeared on behalf of the CAA/respondent No.28 and stated that the private respondents could construct the building upto 107 square feet only and whatever construction raised beyond this point is a threat to the aeroplanes landing and taking off from the airport. He in this regard has supported the arguments of the petitioner and stated that on the height issue he will support the arguments of the petitioner; however , his department has got nothing to do either with regard to commercialization or amalgamation issue of the two plots. 19. Mr. Nishat Warsi, DAG appearing for the respondent No.29 has adopted the arguments of Dr. Shahnawaz. He, however , submitted that the respondents, so far as height issue is concerned, have not taken any approval from the PAF hence, according to him, the said project is a constant threat to the aeroplanes used for civil as well as military purposes. Hence he also supports the viewpoint of the petitioner . 20. None has appeared for the respondent No.18, whereas learned counsel for the petitioner did not press this petition against the respondent No.19. 21. While rebutting the arguments of the learned counsel for the respondents, the learned counsel for the petitioner submitted that the decisions relied upon by the learned counsel for the respondents are distinguishable. They further stated that those decisions, in their opinion, are per incuriam as those judgments have been passed by ignoring other decisions given by the Hon'ble Supreme Court and the High…
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