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Petitioner: SHAHID NABI MALIK and others VS Respondent: PROVINCE OF SINDH through Chief JUDGMENT
Court Name: Sindh High Court Judge(s): Aqeel Ahmed Abbasi, Muhammad Junaid Ghaffar Title:SHAHID NABI MALIK and others vs PROVINCE OF SINDH through Chief
JUDGMENT
Reported As: 2014 CLC 1792 Result: Order accordingly Judgment JUDGMENT ' MUHAMMAD JUNAID GHAFFAR, J.--- Through this common Judgment we intend to dispose of the aforesaid petitions bearing No,D-3508 of 2011 and D-582 of 2012. The petitioner in C.P. No,D-3508.Of 2011 is respondent No, 2 in C.P. No,D-582 of 2012, whereas the petitioner in C.P. No,D-582 of 2012 is respondent No, 4 in C.P. No,D-3508 of 2011. For ease and convenience, the petitioner in C.P. No,D- 3508 of 2011 would be referred to as "Petitioner", whereas petitioner in C.P. No,D -582 of 2012 would be referred to as 'Respondent" hereinafter. The petitioner in C.P. No,D-3508 of 2011 has made the following prayers:--- (1) That the honourable High Court may be pleased to declare that the actions of the respondents in attempting to widen the service lane serving the main Shaheed-e-Millat Expressway and the road between Plot No, 13 and Plot No, 5 of Deh Drig Road, Karachi both of which are adjunct to the project "Defence Regency" are mala fide, illegal and null and void; (2) That the honourable High Court may be pleased to restrain the respondents from harassing the petitioner by attempting to unlawfully and malafidely widen the service lane serving, the main Shaheed-e-Millat Expresswa y and the road between Plot No,13 and Plot No, 5 of Deh Drig Road, Karachi which are adjunct to the project "Defence Regency"; (3) That the honourable High Court may be pleased to restrain the respondents from any coercive action against the petitioner, including but not limited to preventing the petitioner from constructing on the said project "Defence Regency".
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(4) That the honourable High Court may be pleased to grant any further relief as it may deem appropriate in the circumstances of the case; (5) That the honourable High Court may be pleased to grant the costs of the petition to the petitioner." 2. Briefly, the facts relevant for the disposal of the instant petitions are that the petitioner is involved in the business of construction and had initiated a residential-cum-commercial project by the name of "Defence Regency" on plot No,13 Shaheed-e-Millat Expressway, off Korangi Road, Karachi ("Project"). It is stated that the petitioner had acquired all the requisite permissions for raising such construction from the respondent No,2 ("SBCA") and respondent No,3 ("CDGK") and so also from the Environmental Protection Agency, Government of Sindh. It is further stated that after the construction work had started in the project and third party interest were also created, a petition bearing No,D-2150 of 2006 (Messrs Printek Private Limited v. Shahid Nabi Malik and others) was filed by the respondent in which the respondent had raisea various objections on the construction of the said project, specifically the approvals granted by SBCA and CDGK. Subsequently the said petition was disposed of by a Division Bench of this Court vide judgment dated 24-6-2011 ("judgment dated 24-6-2011"). However, according to the petitioner, SBCA malafidely and unlawfully demolished, amongst other things, the boundary walls of the project's main entry gates and various barriers. It is further stated that subsequently CDGK affixed a notice dated 29-6-2011 on a pillar of the said project, wherein it was stated that an inspection of the project was required, purportedly in compliance of the judgment dated 24-6-2011 and in relation to road widening scheme in pursuance of Resolution No,312 dated 15-12-2007 passed by the City Council, Karachi. It is further stated that subsequently on 9-7-2011, a another notice was issued by CDGK and the petitioner was asked once again to stop the construction. The petitioner was thereafter compelled to file the instant petition and challenged the impugned action of demolition initiated by SBCA and CDGK, being in violation of the judgment dated 24-6-2011. Thereafter, it came to the knowledge of the petitioner that SBCA and CDGK after conducting meeting on 7-12-2011 had approved the road widening scheme, and the action initiated against the petitioner was on the basis of such decision. It further came to the knowledge of the petitioner, that a Notification dated 3-1-2012 has also been issued by SBCA in respect of said road widening scheme, after which the petitioner filed an application under Order VI, Rule 17, C.P.C. (C.M.A. No,2649 of 2012) through which the subsequent events arising in the matter were also challenged and the following additional prayers were also made by the petitioner:--- "(3-A) Declare the meeting of the respondent No,3 (MPGO) and other respondents dated 7-12-2011, the letter dated 8-12-2011 forwarding the minutes of the illegal meeting so also Notification dated 3-1-2012 to be completely without jurisdiction, un-constitutional, illegal, mala fide, void ab-initio and of no legal effect, while annulling the same. (3-B) Permanently and pending disposal of the main petition suspend the operation of the meeting dated 7-12-2011 the letter dated 8-12-2011 forwarding the minutes of the illegal meeting so also the Notification dated 3-1-2012 while restraining the respondents, their officers and agents from taking any adverse action in pursuance of the Notification dated 3-1-2012. (3-C) Alternatively, hold that the Notification dated 3-1-2012 is neither retroactive nor applicable to the petitioner." 3. The facts in C.P. No,D-582 of 2012 are that the respondent who has filed the said petition is a Private Limited Company incorporated with the object of carrying on the business of printing and pre-press support services. The respondent's office building directly faces the project of the petitioner and the distance of the road in between is only 34 feet. The precise case of the respondent is that, SBCA and CDGK have acted in accordance with the judgment dated 24-6-2011 and therefore the road widening scheme, as well as the amendment carried out through
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Notification bearing No, Chief Executive/SBCA2012/631 dated 3-1-2012 was correctly and lawfully issued in terms of powers conferred by section 21-A of the Sindh Building Control Ordinance, 1979 whereby Chapter 16 of the Karachi Building and Town Planning Regulations, 2002 ("2002 regulations") was amended through which the width of the road from 30-40 feet was proposed to be extended to 80 feet being proposal at serial No,36 which relates to the controversy in the instant matter. The precise case of the respondent is that the road widening is inevitable and must be carried out as it has been approved in the larger interest of the people of the area. 4. Dr. Muhammad Farogh Naseem, learned counsel appearing on behalf of the petitioner, has contended that the petitioner's request for amalgamation of Plots Nos.12 and 13 was approved and so also the layout/site plan on 21-3-2006 which was subsequently also approved vide letter dated 31-5-2006 by the Town Planning section of KBCA (now SBCA). Learned Counsel further contended that on 18-10-2006 the final approval of the plan was also issued in favour of the petitioner, therefore the proposed road widening scheme notified on 3-1-2012 cannot be made applicable retrospectively on the petitioner's project in question as the petitioner has acquired a vested right in respect of the said project which is almost complete and third party interests have been created through sale of apartments as well as commercial shops. Learned Counsel further contended that 10 feet area in question reserved for construction of Arcade, is part of the plot of the petitioner on which the said project belonging to the petitioner is being' raised and cannot be encroached upon under the garb of road widening scheme, as it can only be acquired under the Land Acquisition Act, 1894. Learned counsel further submitted that for approval of road widening scheme, it is mandatory that a public notice must be issued whereby such proposal has to be brought to the knowledge of the general public for calling of objections, if any, which in the instant case has not been done; hence it violates the fundamental rights of the petitioner including, but not limited to Article 10-A of the Constitution of Islamic Republic of Pakistan. Learned Counsel also referred to Chapter 16-3 of the 2002 Regulations and submitted that only such roads which are included or mentioned in the table can be considered for road widening scheme and not otherwise. Learned Counsel further submitted that the impugned Notification dated 3-1-2012 cannot have any retrospective application on the petitioner's project. Learned Counsel also submitted that the respondent is acting malafidely as it belongs to a big Media Group, and is exerting undue influence and coercing SBCA and CDGK to take action against the petitioner, and has also played a vital role in getting the impugned Notification dated 3-1-2012 issued against the interest of the petitioner. Learned counsel also referred to Para 49 of the judgment dated 24-6-2011 and contended that the controversy in question has already been decided in favour of the petitioner, wherein the learned Division Bench has held that. If Arcade is part of the plot and is not to be considered for extension of road, then construction can be allowed. Learned counsel finally submitted that since the Arcade in question is undisputedly, part of the property on which the project of the petitioner is being constructed, therefore it cannot be considered for the road widening scheme; hence the impugned Notification dated 3-1-2012 cannot be applied against the interest of the petitioner. Learned counsel in support of his contentions relied upon the case of Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Ltd. (PLD 1974 SC 180) and Senior Member BOR and others v. Sardar Bakhsh Bhutta and another (2012 SCMR 864). 5. Mr. Haider Imam Rizvi learned counsel appearing for respondent contended that the construction of the said project is still incomplete and the petitioner in order to avoid the implementation of the road widening scheme, has started construction on a fast pace on the disputed area reserved for the Arcade. Learned counsel further submitted that the Notification dated 3-1-2012 can operate retrospectively on the basis of the observations in the judgment dated 24-6-2011. Learned counsel also contended that the scheme of road widening had started as back as in 2007 and it was within the knowledge of the petitioner that such scheme was in progress,
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therefore if the petitioner, despite such knowledge has raised any construction, it is entirely up to the risk and cost of the petitioner. Learned counsel further contended that the road widening schemes are generally for the benefit of the public at large, therefore it has to be given priority as against the interest of an individual. Learned counsel also contended that the respondent has already preferred a Civil petition for Leave to Appeal bearing No,797 of 2011 (Printek Private Limited v. Shahid Nabi Malik and others) before the Hon'ble Supreme Court on 22-8-2011 against the judgment dated 24-6-2011 which is pending. Learned counsel also contended that since the road widening scheme is in the interest of the public, therefore the Notification impugned herein can be applied retrospectively. Learned Counsel further contended that for the benefit of the public, land can be acquired by the official respondents, therefore if need arises, the land in question can also be acquired under the Land Acquisition Act, 1894. In support of his contention the learned Counsel for respondent has relied upon the case of Sub. (Retd) Muhammad Ashraf v. District Collector Jhelum and others (PLD 2002 SC 706), Nisar Ahmed Khan and others v. Collector Land Acquisition Swabi and others (PLD 2002 SC 25), Federal Government Employees Housing Foundation and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad (PLD 2002 SC 1079), Pakistan Muslim League (N) through Khawaja Muhammad Asif, MNA and others v. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 SC 642), Muhammad Jahangir and others v. Government of Punjab and others (2000 MLD 1196), Haider Ali and 9 others v. Deputy Commissioner Karachi and 3 others (1986 MLD 2650), Federation of Pakistan and others v. Shaukat Ali Mian and others (PLD 1999 SC 1026), Commissioner of Income Tax v. Shahnawaz Ltd. And others (1993 SCMR 73), lmtiaz Ahmed and others v. Punjab Public Service Commission through Secretary, Lahore and others (PLD 2006 SC 472), Mst. Ummatullah through Attorney v. Province of Sindh through Secretary Ministry of Housing and Town Planning, Karachi and 6 others (PLD 2010 Karachi 236), Ardeshir Cowasjee and others v. Government of Sindh and others (1998 MLD 1219) and Messrs Excel Builders and others v. Ardeshir Cowasjee and others (1999 SCMR 2089). Learned Counsel also specifically relied upon the judgment dated 24-6-2011 which has also been reported as Printek (Pvt.) Ltd. Through Executive Director and 3 others v. Shahid Nabi Malik (2011 YLR 2941). 6. Mr. Rafiq Kalwar learned Counsel appearing on behalf of respondent No,2 in C.P. No,D-582 of 2012 (petitioner in C.P. No,1)-3508 of 2011) contended that the principle of constructive res judicata is applicable in the matter as the respondent has already challenged the judgment dated 24-6-2011 before the Hon'ble Supreme Court by raising the same legal 'questions as raised in C.P. No,582 of 2012. Learned counsel further contended that the road widening scheme has been approved in collusion between SBCA, CDGK and the respondent, as it is only for the benefit of the respondent that such a scheme has been approved, whereas, the road for which impugned Notification has been issued is not a main road and merely a 40 feet wide service road. Learned Counsel further submitted that the respondent has admittedly challenged the judgment dated 24-6-2011 before the Hon'ble Supreme Court on the one hand, and is also trying to take refuge on the basis of the same Judgment, in support of the road widening scheme; hence the stance of the respondent is contradictory in nature as the respondent at the same time is aprobating and reprobating. Learned counsel prayed for the dismissal of the respondent's petition on the basis of above submissions. Learned counsel also referred to a report which has been placed on record by the learned counsel for NESPAK through statement dated 4-2-2013 and issued by M/s NESPAK who was appointed as Commissioners for inspection of the project by this Court vide order dated 29-11-2011 which is available at page 889 of file of C.P. No, D-3508 of 2011 and contended that the said report was also in favour of the petitioner as no irregularity of any sort has been pointed out in the said report. 7. Mr. Syed Sultan Ahmed learned Counsel appeaVng on behalf of the CDGK ("KMC") contended that in terms of section 40 of the Sindh Local Government Ordinance, 2001 a master plan can also
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be revised and for such purposes a resolution was passed by the City Council, Karachi vide Resolution No,312 dated 15-1-2007 as per agenda Item No,4.3.6(d). Learned counsel submitted that road widening scheme is part of the Public Sector Development Program 2020 ("PSDP-2020") and was approved after carrying out a study in a comprehensive manner and after preparation of a survey report. Per learned Counsel this was in the larger interest of the public and of vital importance, therefore such widening of service road from Malir Road Bund Expressway from 30-40 feet to 80 feet wide has been approved. Learned counsel further submitted that this road widening scheme was under consideration of CDGK since 2008. In this regard the learned counsel referred to letter dated 7-5-2008 written by the Master Plan Group of Offices (MPGO), CDGK to the EDO Transport and Communication. Learned counsel also referred to Chapter 16 of the 2002 Regulations, especially Regulations 16.1.1. And 16.2.2 and 16.3. Learned counsel further submitted that since it is a matter of public interest, therefore the impugned Notification dated 3-1-2012 can be applied retrospectively. In support of his contentions learned Counsel relied upon the case of M/s Army Welfare Sugar Mills Ltd. And others v. Federation of Pakistan and others (1992 SCMR 1652). 8. Ms. Rizwana Ismail learned counsel appearing on behalf of SBCA contended that though no sanction of scheme of the area has been approved; however in terms of section 14 of the SLGO, 2001 Reclassification of area is permissible. Learned counsel contended that no proper procedure has been followed in the instant matter as the Environmental Impact Assessment has not been obtained in accordance with the Environmental Protection Act 1997, therefore before proceeding with the road widening scheme and the construction of the project, the concerned agency has to be approached for issuance of a proper No Objection Certificate in the matter. Learned counsel also referred to an advertisement dated 30-3-2012 published in daily DAWN and submitted that substantial compliance regarding calling public objections as required under Regulation 16.2 of the 2002 regulation has been made by SBCA, hence the respondent's petition be allowed and the petitioner's petition be dismissed. In support of her contention the learned Counsel has relied upon the case of Nighat Jamal v. Province of Sindh and others reported in 2010 YLR 2624. 9. We have heard all the learned counsel and perused the entire record and the case law relied upon by all the learned counsel. By consent of all the learned counsel for the parties in both the petitions, both the petitions were taken up for final disposal at the Katcha peshi stage. 10. It appears that the controversy in the instant matter is in respect of the same portion of the property ("Arcade") which was also the subject matter in C.P. No,D-2150 of 2006 filed by the respondent against the petitioner and others. The said petition was disposed of by a Learned Division Bench of this Court vide judgment dated 24-6-2011. We have been informed that the respondent has already challenged the said judgment, before the Hon'ble Supreme Court through CPLA No,797 of 2011 which is pending. In the said petition the respondent had prayed as follows:--- (i) Declare that the official respondents' approval of the architectural plans submitted by the respondent No,1 in respect of Plot No,13, Survey Nos.110 and 111, Deh Drigh Road, Shaheed-e-Millat Expresswa y, off Korangi Road, Karachi, and the grant of NOC for public sale in relation thereto; is illegal, without jurisdiction and void, ab-initio; (ii) Restrain the respondent No,1 from raising any construction upon the said plot; (iii) Restrain the respondent No,1 from advertising the sale of units in the said building project and from allotting units therein or otherwise creating any manner of the of third party interests in the said building project; 11. The case of the respondent in the said petition was that construction was being carried on illegally and in violation of the approved building plan and the said construction was being raised at a distance of 40 feet from the building of respondent. Though several objections were raised by the respondent in respect of the approved building plan and the alleged violations committed by the petitioner, but for the present purposes, the issue which was raised in the said petition and is
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also the subject matter of the instant petition is in respect of the definition of Arcade given in Regulation No,2-12 of the 2002 Regulations read with Regulation 25-3.2. The objection so raised by the respondent was to the effect, that though Arcade was permissible under the said Regulations, but no construction was allowed to be raised over the Arcade which according to the respondent had been permitted by SBCA in the said project. It was further alleged that the petitioner was raising construction on the said Arcade up to the entire level of the building by raising construction of flats on the said portion of the Arcade. The learned Division Bench vide its judgment dated 24-6- 2011 has dealt with the issue of construction on the said portion of Arcade at Para 49 in the following manner:--- 49. The next objection raised by the learned counsel for the petitioner is that no construction can be made on the Arcades in accordance with the provisions of regulation 25-3.2(3). This objection has also been opposed by the learned counsel for the respondent No,1 who has submitted that there is nothing in the objection to substantiate that above the Arcade there can be no construction. He further submitted that it is a settled principle of interpretation that whatever is not expressly prohibited is permitted. From a perusal of 25-3.2(3) we have seen that in case of corner buildings, COS have been condoned and Arcades can, be provided and Arcade is defined in the regulation 2-12 to mean "a covered walk-way or a verandah between the shops and the street/footpath on which the shops abut". While we agree that compulsory open space means the spaces open to sky but the definition of Arcade leads to the conclusion but it is not open to sky but a covered walkway and once a provision for condonation of compulsory open space is provided irrespective of commercial plans and it has been provided that Arcades will be provided then unless it is specifically prohibited we are of the view that construction can be allowed on such Arcades. However, if the Arcades have been provided for the purpose of extension of the roads then perhaps no construction can be allowed on such Arcades as if construction is allowed arra tomorrow the road is being extended the entire construction may have to be demolished for the purpose of extension of the road which is a public utility. However, if the Arcade is a part of the plot and is not to be considered for extension of road then construction can be allowed. The KBCA is directed to ascertain whether such Arcades may be subject to demolition in case extension of road is required on or any part of the plot and then decide this issue in the light of the above observations. 12. The learned counsel for respondent has informed this Court that the said judgment has been impugned before the Hon'ble Supreme Court in CPLA No,797 of 2011 which is pending, however it was admitted that neither leave has been granted in the matter nor any interim order has been passed as yet. It further appears from the record that after passing of the judgment dated 24-6- 2011, SBCA and CDGK had initiated the exercise of demolishing some part of the construction of the said project and such exercise was purportedly carried out for the purpose of road widening scheme in pursuance of Resolution No,312 dated 15-1-2007 passed by the City Council Karachi. It is also a fact that at the time when demolition was impugned in the instant petition, only the aforesaid resolution was in field and the Notification dated 3-1-2012 was not issued. In fact this resolution was also in field when this Court had passed the judgment dated 24-6-2011. The petitioner being aggrieved with such action was compelled to file the instant petition, challenging the action of demolition being carried out on the said part of the project as well as Resolution No, 312 dated 15-1-2007. Insofar as the case of the113 petitioner is concerned, the raising of construction on the Arcade is settled in its favour, by this Court through judgment dated 24-6-2011 and further, since the matter was pending before the Hon'ble Supreme Court, wherein neither any interim orders were passed nor the operation of the said judgment was suspended, the exercise of road widening scheme being initiated by CDGK and SBCA through Resolution No,312 dated 15-1-2007 and through issuance of Notification dated 3-1-2012 was based on mala fides. Therefore the
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demolition of the construction raised on the said portion of the Arcade, was unlawful. It further appears that after filing of the instant petition, and during pendency of the same, SBCA in exercise of the powers conferred under section 21-A of the Sindh Building Control Ordinance, 1979 vide its Notification dated 3-1-2012 made amendment in Chapter 16 (widening of roads) in 2002 Regulations and approved the road widening scheme from the existing width of 30-40 feet to the proposed width of 80 feet. The petitioner, thereafter through an application under Order VI, rule 17, C.P.C. Sought amendment in the pleadings and has also challenged the said. Notification dated 3- 1-2012 which was published in the Sindh Government Gazette on 5-1-2012. After going through the judgment dated 24-6-2011 and the relevant Para 49 of the said judgment, we are of the view that prima facie…
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