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Petitioner: AHMAD JAVED SHAH VS Respondent: LAHORE DEVELOPMENT AUTHORITY
Court Name: Lahore High Court Judge(s): Khalil-Ur-Rehman Khan Title: AHMAD JAVED SHAH vs LAHORE DEVELOPMENT AUTHORITY Case No.: Writ Petition No, 4881 of 1992 Date of Judgment:1995-02-21 Reported As: 1996 CLC 7 Result: Petitions dismissed
JUDGMENT
JUDGMENT JUDGMENT ' This judgment will dispose of two writ petitions bearing numbers W.P. 4881-92 and W.P. 5193-92 as the controversy subject-matter of these petitions as well as the question of law involved are one and the same. The factual background of the controversy raised may first be narrated. ' W.P. 4881-92 ' Ahmed Javed Shah petitioner is one of the co-owners of residential property bearing No,76-E-1, Main Boulevard, Gulberg, Lahore, and on the adjacent property bearing No,74-75/E-1, Gulberg, a multi-storeyed commercial building under the name of Hafeez Centre has been built after demolishing a residential bungalow. Both these properties are situate in the area which is part of the scheme developed and executed by the erstwhile Lahore Improvement Trust, the predecessor- in-interest of the Lahore Development Authority. The building so built is a four-storeyed building with basement and height of the building is 58 feet. The assertion of the petitioner is that the Gulberg Scheme with its main Boulevard was and continues to be a residential area and no part of any property situated in the said Boulevard can be converted to any other use as conversion of use of a property is not only prohibited but is also a criminal offence under section 38 of the Lahore Development Authority Act, 1975. However, in terms of sub-Regulation (4) of Regulation 96 of the L.D.A. Building Regulations, 1984, the properties abutting on the Main Boulevard in Gulberg may be subjected to change of use from 'residential' to ' special commercial' but subject to the prior approval by the Director-General of the L.D.A. Which can be granted by him only on production of a no-objection certificate from the owners of the adjoining properties. It was asserted that the
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petitioner who is owner of an adjoining property did not give his consent or no objection for the conversion of the use of the property and that in any case the conversion is permissible only to the extent and subject to the pre-conditions mentioned in the abovesaid regulation regarding number of storeys, to the maximum height of 38 feet, adequate protection to the privacy of the adjoining properties, maximum coverage, adequate parking space and situation of the building lines. It was added that sub-Regulation (5) of Regulation 96 defines 'special commercial' as including only offices, restaurants, motels and showrooms, and, therefore, the plaza as has been built could not be permitted to be built. ' W.P. 5193-92 ' Mst. Sughra Begum petition& is owner in possession of a house built over residential plot Nos.92 and 93, Block E/1, Gulberg-III, Lahore. This house is situated towards the back of residential plots 74- 75/E-1, abutting on Main Boulevard, Gulberg-III, Lahore. The original purchaser of these plots had constructed a bungalow over these plots. It is asserted that the said plots alongwith its superstructure were purchased by Sh. Abdul Qadeer, respondent No,3, who after demolishing the same is constructing a multi storeyed commercial building under the name of Hafeez Centre after obtaining approval/sanction of the L.D.A. The petitioner addressed a letter on 25th October, 1989, to the Director, Land Development, L.D.A. Informing him that she has not granted any no-objection certificate to anyone. She again applied to arrange supply of copy of the order of the Authority granting no-objection certificate to M/s. Hafeez Centre, copy of the no-objection certificate and approval of the adjoining property owners re: grant of no-objection certificate. Again on 26th March, 1991, legal notice was served on the Director-General to immediately stop construction of the Hafeez Centre and to withdraw the sanction if any in respect of the said Centre for construction of commercial plaza as otherwise legal proceedings shall be initiated in a Court of law. This writ petition was, however, filed on 6-6-1992. 2. On factual side the case of Sh. Abdul Qadeer respondent is that he had purchased the plots vide agreement to sell in April, 1990, and on the basis of said agreement to sell a suit for specific performance was filed and got decreed from Civil Court vide judgment and decree dated 8th April, 1990. In the Civil Court proceedings, no-objection certificate executed by the petitioner in W.P. 4881- 92 was filed alongwith the written statement. He, therefore, is estopped to take a contrary position now. The respondent was granted permission to convert the residential plot into commercial one by the L.D.A. Vide order dated 20th October, 1990. The building plan was not sanctioned On 2nd November, 1990, and the same on the construction commenced and the building has been already constructed exactly according to the sanctioned plan. Learned counsel further submitted that Haji Fazal Din, the predecessor-in-interest of respondent No,4 had earlier filed a writ petition (W.P. No, 6158-90) against the Lahore Development Authority as undue delay was being caused in sanctioning the building plan but the same was withdrawn as grievance was redressed by according necessary sanction and there was no need to prosecute the matter any further. It was maintained that construction of the building was completed in December, 1991; and since the commencement of construction, wide publicity through advertisements in the press was made for sale of shops and apartments etc. Of Hafeez Centre and the petitioners knew the nature of the building being constructed as even detailed building plans were exhibited for public inspection but during all this period no objection was ever raised to the notice of the respondent and when the building was complete and almost entire tenements, shops, apartments have already been sold the first petition was filed on 28th May, 1992. Learned counsel maintained that denial of Ahmed Javed Shah petitioner of having executed the 'no-objection certificate' is wrong and the affidavit submitted by him in this behalf merits to be discarded as his very conduct of obtaining national identity cards and passports in two different names makes him unreliable person. This disputed question of fact need not be gone into by this Court as for these proceedings it is sufficient to
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notice that the authorities on the basis of verification made before sanctioning the conversion to their satisfaction found that the no-objection certificate was executed by the petitioner. As regards plea of violating the privacy learned counsel for the respondents submitted that Ahmed Javed Shah petitioner is a co-sharer of the adjoining property which has now been partitioned amongst co-sharers and to his share has fallen one and half Kanals of the plot abutting on the road; that the petitioner has also issued advertisements inviting offers for sale of the property as non-residential and that this building was used already as non-residential building as for some period a school was being run and later on office was functioning in it. It was maintained that the plea of violation of privacy of home is not available to the petitioner and that in fact on account of concealment of true facts and deliberate misrepresentation the petitioner is disentitled to claim any relief in exercise of Constitutional jurisdiction. 3. As regards the second writ petition of Mst. Sughra Begum, learned counsel submitted that the petitioner has rented out her own building to Goethe Institute for the last many years and since then seminars, lectures and exhibitions and public meetings are being held in the said building social activities are going on and it was not disputed that the said building is being put to public use. It was added that the petitioner obtained permission to use her own premises for non- residential purpose on 5th June, 1990, and that it was on account of aforenoted situation prevailing at the site that the plea of violation of privacy of home has not been taken by her. It was pointed out that objection made by the petitioner in the letter noted above was turned down by the L.D.A. Vide its letter dated 7th April, 1991, on the ground that 'no-objection certificate' was not required to be obtained from the petitioner as she was using her own building for non-residential purposes. Moreover the letter objecting to the construction of a commercial building was not endorsed to the respondent No,4 and despite rejection of the protest letters the petitioner waited for fourteen months to file the writ petition on 6th June, 1992, in this Court when not only the building had been completed but also sold out to almost six hundred persons, the purchasers of the tenements, shops, offices and apartments. It was argued that had the petitioner raised objection valid in law, if any, and had the authorities on account thereof not granted the sanction of building plans, etc. The respondent would not have invested millions of rupees but now after construction and conveyance of rights to hundreds of purchasers the petitioners are indulging in blackmailing and are thus not entitled to any relief. Learned counsel in the context of the aforenoted facts and circumstances raised following objections to the maintainability of these petitions:-- (a) The persons who have purchased the tenements, are real affected parties but they have not been impleaded though sale was made publicly and as such these petitions are liable to be dismissed for not impleading necessary parties. Reliance was placed on Rawalpindi Improvement Trust v. Government of Pakistan (PLD 1970 Lah. 760), Muhammad Ibrahim v. Chief Settlement and Rehabilitation Commr. (PLD 1966 Lah. 396) and A.F.M. Abul Fateh v. Province of East Pakistan (PLD 1966 Dacca 178); (b) petitioners having acquiesced in the construction and sale of property are disentitled to seek relief in discretionary jurisdiction; (c) laches coupled with estoppel are also involved and hence the petitions are liable to be dismissed on these counts alone. Reference was made to The King v. Stafford Justices (1940) 2 K.B. 33 (46-47)--Settlement Authority v. Mst. Akhtar Sultana (PLD 1976 S.C. 410), Syed Azizud Din v. Messrs Can Co. 1982 SCMR 912), Khalid Mahmood Khuhro v. Federation of Pakistan (1988 CLC 2320) and Nidamarthu Balasurya Bheemaraju v. Changati Mrutyanjayudu (AIR 1931 Mad. 354). 4. The legal questions raised by the learned counsel for the petitioners with respect to the main controversy are-- (a) since mandatory provisions of sections 13 and 14 of the L.D.A. Act, 1975, were not complied with, the building constructed in contravention of the Act and sub-clause (4) of Regulation 96 of the
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Building Regulations, 1984, is liable to be removed. It was explained that the scheme sanctioned under Town Improvements Act, 1922 by virtue of section 48 of the L.D.A. Act, 1975, is to be taken as a scheme made and prepared under the L.D.A. Act and such a sanctioned scheme cannot be modified by the L.D.A. Except in the manner prescribed by sections 13 and 14 of the L.D.A. Act. According to the learned counsel the conversion of residential to commercial nature of the property amounts to modifying the scheme and such modification can take place only in accordance with the provisions of section 14 of the Act and as the methodology was not adopted the sanction of conversion granted by the L.D.A. Is unauthorised and illegal. In support reliance was placed on Mian Fazal Din v. Lahore Improvement Trust (PLD 1969 SC 223) and Ardeshir Cowasjee v. M/s. Multiline Associates (PLD 1993 Kar. 237); (b) Regulation 96 of the Building Regulations, 1984, framed under section 45 of the L.D.A. Act allowing conversion is ultra vires the Act of 1975; (c) conversion could not be allowed even in terms of Regulation 96 as owners of the adjacent buildings did not grant N.O.C.; (d) the discretion vesting in the L.D.A. To relax the conditions of the Building Regulations was exercised arbitrarily and illegally. 5. Learned counsel for the respondents on the other hand argued that the schemes referred to in these petitions were executed long ago and in the circumstances the question of modification of the scheme is neither involved nor can be raised. They maintained that in these petitions there has been a change of use of property and power to allow such conversion has been provided by section 38 of the L.D.A. Act, 1975, and as such reference to or reliance on sections 13 and 14 of the Act is inapt and misconceived. Learned counsel further submitted that the power to allow conversion has been properly exercised by the relevant authorities after considering the relevant aspects and that the building has been constructed after obtaining sanction from the authorities concerned. 6. As question of public importance was involved, learned Advocate-General was also required to address the Court on the legal questions raised in these petitions. He submitted that section 14 of the Act contemplated modification of scheme, change or alteration in lay-out plans till completion or execution of the scheme and as such change, alteration or modification after the completion of the scheme does not fall within the purview of the said section. He was of the view that after execution Of the scheme no change or modification can be effected, at all. He explained that modification, change or alteration in a sanctioned scheme can at best be made up to the time that rights or interest in individuals and private parties have not yet been created by making allotments or through sale of plots etc. But once rights have come to vest in individuals in plots, residential or commercial, as demarcated, no change in the scheme can take place without their consent. Learned Advocate-General argued that the power to permit conversion vesting under section 38 is to be exercised to the limited extent of conversion of use, the initial character of plot or property cannot be allowed to undergo a change. It was added that on a residential plot, a commercial plaza cannot be allowed to be constructed and that the Act, as it exists presently, does not give any power to change the initial character of the property envisaged in the sanctioned scheme. According to him if Regulation 96 of the Building Regulations, 1984, is to be interpreted as empowering modification of character of plot or property as being contrary to the main scheme of the Act. As regard the grant of relief to the petitioners in these petitions learned Advocate-General was of the view that the directions asked for should be refused and writ may not issue as it would cause immense loss to the respondents who has built the commercial building in accordance with the plan sanctioned by the authorities and persons who have purchased the apartments, shops etc. Have not been impleaded in these petitions and that granting of the writ in their absence would amount to condemning them unheard.
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7. Mr. A.R. Arshad Malik, learned Legal Advisor for L.D.A. Did not agree with the interpretation of sections 13, 14 and 38 of the L.D.A. Act as canvassed by the learned Advocate-General as he was of the view that the L.D.A. Has power to allow conversion of residential plot in a scheme to different use or purpose and that initial character or type of a plot remarked for any purpose can be altered and changed during as well as after execution of the scheme. He maintained that section 14 contemplates modification of scheme approved for an area while conversion of a plot does not amount to modification of the scheme. He explained that the authority in discharge of its functions has to act in accordance with the directions of the Government in view of the provisions contained in section 17 of the Act and the residential plots finalised by the Provincial Government. It was added that section 38 of the Act empowers the Government and the authority to allow change even in original character of the property and Regulation 17 of the Building Regulations makes a general provision in order to support the provisions of the Act and terms of the scheme and the said provision cannot be read so as to denude the authority of the power vesting in it under section 38 of the Act. He argued that sub-clause (4) of Regulation 96 does not violate any provision of the Act and that in any case on account of laches, acquiescence and delay these petitions are liable to be dismissed. 8. Learned counsel for the petitioners in reply refuting the preliminary objections raised by the learned counsel for the respondents submitted that principle of laches and inordinate delay does not apply in the instant case and that the respondent cannot take refuge under these principles as the question involved is of maintaining the schemes of the area in the interest of citizens of Lahore and as the rights of privacy, as enshrined in the Constitution are being sought to be protected. 9. In order to appreciate the legal questions raised it appears necessary to reproduce the relevant provisions of law and Building Regulations referred to by the respective arguments. Sections 13 and 14 of the L.D.A. Act, 1975, read as under:-- 13.--(1) The authority shall, in such form and in such, manner as may be prescribed, prepare schemes for the area or any part thereof. (2) All schemes prepared by the Authority shall be submitted to the Government for its approval, except those schemes, the provisional estimated cost of which does not exceed such limit as may be prescribed by rules or for which no loan or grant is required' from the Government. (3) The Authority shall publish the sanctioning of any scheme in the official Gazette and shall forthwith proceed to execute the scheme. (4) The publication of a sanction under subsection (3), shall be conclusive evidence that the scheme has been duly framed and sanctioned. (5) No planning or development scheme shall be prepared by any person or local body or Government agency within the area except with the concurrence of the Authority. (6) In every scheme provision for a plot or plots for mosques shall be made. 14. Any scheme prepared under this Act may, at any time, be amended or modified by the Authority in the same manner as may be prescribed for the preparation of a scheme. ' Relevant part of Regulation 96 of the Building Regulations, 1984, reads as under:-- 96-A. Area subjected to special control.---Notwithstanding the requirements of these Building Regulations, the buildings in the following areas shall conform to the additional special control specified for each hereunder:-- 4. Gulberg Road, Main Boulevard in Gulberg, New Garden Town, New Muslim Town and Allama Iqbal Town and other areas subjected to conversion of use. ' Parties abutting on these plots and elsewhere may be subjected to change of use from residential to "Special Commercial" subject to prior approval of the Director-General, which may be granted by him only on production of No-Objection Certificate from the owners of adjoining properties and on payment of such fee as may be prescribed from time to time:
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(a) The properties shall have-- (i) a minimum of 30 ft. (9.15 m) Building Line in case of properties abutting. Gulberg Road, Main Boulevard in Gulberg, New Garden Town, New Muslim Town and Allama Iqbal Town; (ii) the Building Line as provided under Regulation 19 in areas other than those specified at 4a (i) and in no case it shall be less than 10 ft. (3m); (iii) permanent open spaces around the building as prescribed for residential plot of the corresponding size; (iv) a maximum coverage of 50% and maximum plot/floor area ratio of 1.8; (v) not more than three storeys subject to maximum height. Of 38 feet (11.58m); (vi) no window and other openings on the upper floors which may adversely affect the privacy of adjoining properties. (b) Existing buildings fulfilling the requirements prescribed under 4 (a) may be permitted, on annual basis, for use as clinics, schools, restaurants, offices and banks. (c) Existing buildings constructed in accordance with the regulations prescribed for residential plots but not fulfilling the Building Line provided under 4 (a) may be permitted, on annual basis, for use as clinics, schools and Government offices only. (d) Permission for change of use as provided under 4 (b) and 4 (c), may be granted to the owner or the tenant as the case may be, provided in the later case, a valid agreement with the owner regarding renting of the building for the intended use is produced. B. In the areas given in Regulation 96 (A), in addition to the other requirements of Building Regulation shall be provided as laid down. ' Section 38 of the L.D.A. Act reads:-- 38. Any conversion of property to a different use or purpose than the one provided under a scheme, by a person or agency, without the previous approval of the Authority in writing shall be punishable with a fine which may extend to rupees five hundred per day from the date of its conversion till. The default continues or with imprisonment for a term which may extend to one year, or with both. 10. The contentions of the parties noted in para. 4 (a) in essence raise the questions:-- (1) Whether conversion of residential property to a different use e.g. Commercial, amounts to modification of a sanctioned scheme and if so whether such modification can be made only by following the procedure laid down for framing the scheme initially; (2) whether the L.D.A. Is possessed of the power to allow conversion of a property to a different use or purpose than the one provided in the scheme; and (3) what is the import to ' modification of a scheme' and 'conversion of property to a different use', how does both differ from each other? ' In order to fully appreciate the aforenoted contentions of the parties and to answer these questions it is necessary to examine the provisions contained in sections 13,14 and 38 in the context of overall scheme of the L.D.A. Act, 1975. The avowed object of the Act as given in the preamble is to establish in the public interest a comprehensive system of metropolitan planning and development with a view to improve the quality of life in the metropolitan area of Lahore through constitution and establishment of an authority called the Lahore Development Authority. The powers and functions inter alia assigned to the Authority are to prepare a metropolitan development plan which is to be updated periodically and for the said purpose to prepare annual development programmes for the area and to ensure compliance of the programmes in accordance with the priorities established in the metropolitan development plan. Section 6 of the Act further provides that the Authority may prepare, implement and enforce schemes for environmental, improvements housing, urban renewal including slum , improvement and re- development, solid waste disposal, transportation and traffic, health and education facilities and preservation of objects or places of historical, archaeological, scientific, cultural and recreational
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importance. These schemes are to be prepared obviously to achieve the objectives set forth in the. Metropolitan development plan as well as the annual development programmes for the area. The matter of preparation and execution of schemes has.Been dealt with in Chapter IV of the statute. Section 13 provides that the Authority shall in such form and in such manner as may be prescribed prepare schemes for the area or any part thereof. These schemes so prepared are to be submitted to the Government for its approval except those schemes the provisional estimated cost of which does not exceed such limit as may be prescribed by rules or for which no loan or grant is required from the Government. The sanctioning of the scheme is to be published by the Authority in the official Gazette and thereafter it is to proceed to execute the scheme. 11. Section 14 then provides that any scheme prepared under the Act may at any time be amended or modified by the Authority in the same manner as may be prescribed for the preparation of a scheme. It will be seen that the form and the manner of the preparation of a scheme initially is to be prescribed. Section 3, subsection (j) defines ' prescribed' as prescribed by rules or regulations. Section 44 of the Act confers power on the Government to make rules for carrying into effect the purpose of the Act. Learned Legal Advisor for the respondent-Authority submitted that rules were framed according to his instructions but the same could not be made available to him as the relevant file seems to have been misplaced. Despite grant of time, officers of the respondent- Authority could neither produce the file pertaining to the framing and approval of the rules nor could find out the Gazette…
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