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Petitioner: Mst. UMMATULLAH through Attorney VS Respondent: PROVINCE OF SINDH through JUDGMENT
Court Name: Sindh High Court Judge(s): Mushir Alam, Aqeel Ahmed Abbasi Title:Mst. UMMATULLAH through Attorney vs PROVINCE OF SINDH through
JUDGMENT
Reported As: PLD 2010 Karachi 236 Result: Petition allowed Judgment JUDGMENT ' MUSHIR ALAM, J.--Petitioner has challenged the permission dated 25-4-2008 (P17), granted by the Deputy District Officer (PP&CNG),CDGK, the respondent No,3, whereby a portion of residential Plot bearing No,E-20, Block-F, Scheme No,2, North Nazimabad, Karachi, adjoining petitioner's property, was converted into "CNG filling station". Petitioner has also impugned the notification No,S0. (LAND)HTP/KBCS-3-39-290, dated 29th October, 2002 (P/13) published after 6 years from the date of issuance, in the Sindh Government Gazette dated 16th October, 2008, issued by Government of Sindh, Housing and Town Planning Department, in purported exercise of authority under Section 21- A of the Sindh Buildings Control Ordinance, 1979 (SBCO 1979) whereby Regulation 25-12.2 was amended to include residential plot beside commercial and industrial that could be used for the installation of CNG Station. 2. Brief facts appears to be that the petitioner, over 70 years of age, is owner of a residential property bearing No,E-21, Block-F, North Nazimabad, Karachi since 1966. It is not disputed that the subject area is purely residential. Respondent No,6 owner of adjoining residential property obtained bifurcation and got converted a portion thereof into "CNG filling station". 3. Additional District Officer (ADO)(PP & CNG) of Master Plan Group of Offices, CDGK through public notice in daily Jasarat, Karachi, dated 23-11-2007, invited objections to consider proposed conversion of subject property into "CNG filling station". Petitioner filed objections on 3-12-2007, which were heard on 16-4-2008 and permission was granted through impugned order dated 25- 4-2008, Annexure-P/7 to the memo. Of petition (at page 51).
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4. Mr. Badar Alam, learned counsel for petitioner, contended that the entire exercise of converting the residential property into "CNG filling station" was pre-arranged and mala fide. It was urged that invitation of objections, by the functionary not competent, were all sham and colourable exercise of the authority, vitiating the same. 5. Impugned order, it was urged, also exposes complicity between respondent No,6 and other public 'functionaries. On the one hand ADO (PP & CNG), brushed aside objections of the petitioner on the ground that "it was informed to the complainant that the applicant has completed all codal formalities according to the Karachi Building & Town Planning Regulations-2002 amended to date for Installation of CNG Station on Plot No,E-20, Block-F, North Nazimabad, Karachi". It was therefore, argued that formalities for the CNG Station, could only be complete once permission for conversion had been granted in accordance with law and not before. It was next argued that in the press advertisement reference to an undated notification No, SO (Land) HTP/KBCA-3/39/2000 was made, petition was filed on 7-8-2008 and to circumvent the objections as to legality of said notification raised in the petitioner's rejoinder, it was got published on 16-10-2008, therefore, the petitioner after obtaining permission from the Court has filed the amended petition impugning the said notification as well. 6. His objections to the impugned notification are three folds; firstly, that the notification carries date as 29-10-2002, whereas, it was actually published on 16-10-2008. Impugned notification applies, subject to validity, prospectively. Secondly; the impugned notification was issued in purported exercise of power under Section 21-A of SBCO 1979, by the Government of Sindh, and not by the 'Authority' competent under the law to issue the same. According to petitioner, at the relevant time City Nazim, was the 'Competent Authority'. Thirdly; matter relating to conversion or change of land use is beyond the purview of SBCO 1979, such matter fall within the domain of SBCO 1979. Therefore, impugned notification dated 16-10-2008 substituting Regulation No,25-12.2, KB & TPR 2002, and all other enabling regulations permitting installation of CNG Station, over residential plot like commercial and industrial plot, is ultra vires the SBCO, 1979 thus liable to be struck down. 7. Without prejudice to the above, it was argued that Regulation No,18-5.1.1. Of KB & TPR, 2002 also provides that individual cases of conversion cannot be considered in isolation unless there is a common policy for the change and conversion in respect of any particular area on commercial exigency and uniform commercialization. It was urged that there is no policy shift in respect of subject area, and in instant case subject plot has been dealt with in isolation, in negation to the stated object of law. According to Mr. Badar Alam, change of land use is only permissible in terms of Section 39 (c) read with Section 40 (a) the Sindh Local Government Ordinance, 2001 (SLGO 2001), which empowers the authority to approve master plan, carry out zoning, decide land use plan, including classification and reclassification of the land . It was urged that pursuant to power conferred as stated above Council of CDGK framed "Land use & Master Planning-2003, Bye-laws", according to him, change in land use could only be done under SLGO and not in SB&TPR. 8. Mr. Badar Alam, learned counsel, took us to the advertisement published on 23-11-2007, inviting objection against conversion of residential plot for CNG Station, Annexure-p/4 to the memo. Of petition (at page 45), to show that the bifurcated residential plot is shown to be measuring 600 square feet, conversion is shown to be permissible by Government of Sindh, per Notification No, SO (LAND) HTP/KBCA3/39/2000, permission of commercialization is dated 25-4-2008. Whereas, subject notification was gazetted on 16-10-2008. It was urged that the invitation of objections against conversion of residential to CNG Station manifestly shows that the inviting objections was merely a cover-up as the purported notification, on the basis of which such conversion was allowed, was non-existent at the relevant time, impugned notification, if at all, came into effect on 16-10-2008.
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9. It was urged that the impugned amendment in SB&TPR 2002 are ultra vires SBCO, 1979 and alternately impugned notification would apply prospectively from the date of publication and not merely from the date shown in the notification. In support of his contention, he has relied upon the case law reported as Narayan Chandra v. Corporation of Calcutta, 1909 Indian cases 259. He, therefore, prays that the petition may be allowed, impugned conversion in respect of the residential plot into CNG station may be struck down, and the impugned notification be held to be without lawful authority, ultra vires and if at all Court comes to a conclusion that it has been issued under the proper authority in exercise of rightful jurisdiction then it be declared that it has no retrospective application but would apply prospectively. 10. Messrs, Moin Azhar Siddiqui and Shamshad Ali Qureshi, learned counsel for respondents Nos.6 and 7 vehemently opposed the petition. It was contended that the plot in question has been converted strictly in accordance with law. It was urged that the date of notification and not the date of publication is relevant to make a notification effective. According to Mr. MoM, publication of notification in the official Gazette, it is not the requirement under SBCO 1979. In support he relied upon; Saghir Ahmed v. Province of Punjab PLD 2004 SC 261, where the apex Court while examining the word "notified" as used in Section 3 of Punjab Acquisition of Land (Housing) Act 1973 at page 263 held that there is specific stipulation of publication of such an approval in the official Gazette. At page 268 it was held that "it depends on the language of particular statute whether provision regarding publication of the notification in the official Gazette is mandatory or not". Reliance on Dewan Cement v. Collector of Customs and Sales Tax 2009 SC1VIR 1126 is of no assistance to the respondents, it was a matter of recovery of Sales Tax purportedly short recovered and question before the apex Court was whether it was a case of misdeclaration or otherwise under Rule 10 of the Sales Tax Rules. He next relied upon Muhammad Ali v. LDA 2002 MLD 607, where the notification under land acquisition was in issue and the Court held that same was published within reasonable time, therefore no exception was taken. Lastly reliance was placed on Muhammad Suleman v. Abul Ghani PLD 1978 SC 190, wherein the apex Court was called upon to interpret expression "declare by notification" as used in section 8(2) of Punjab Pre-emption Act 1913, at page 192 it was held to "mean a public declaration and not private declaration in secrecy of office of Board of Revenue". It was further held to "mean a notification published under proper authority in official Gazette". 11. Mr. Manzoor Ahmed, learned counsel for CDGK, while adopting arguments of Mr. Moin Azhar Siddiqui, urged that using the property for CNG station is not the conversion of the property for commercial or industrial use. According to him, CNG has become necessity; therefore, conversion of residential property into "CNG Station" is not violative of law. According to him, it is a different category altogether and now the regulations of KBTPR 2002 have been suitably amended/substituted to cater for the use of residential property for CNG station, which was earlier not provided for. According to him, Regulation 18-5 KB & TPR 2002 is not attracted in the instant case, as the subject plot has not been commercialized but has been allowed to be used for CNG Station, which is not a commercial activity. 12. When Mr. MoM Azhar Siddiqui, and Mr. Manzoor were confronted as to whether change of land use could be brought about under the SBCO, 1979 or under SLGO, 2001 and which authority is competent to issue the impugned notification that deals with the change of land use. They candidly concede that matter under discussion for "change of land use" is not provided for under SBCO, 1979 but is dealt with under SLGO, 2001. 13. Exercising right of rebuttal, Mr. Badar Alam, learned counsel for petitioner, urged that that the KB & TPR 2002 cannot travel beyond the scope of parent law itself. No regulation could be framed for the matters not covered by the parent law. 14. We have heard the arguments, perused the material available on record and thoroughly examined the case laws cited at bar.
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15. Controversy regarding impugned notification, as stated earlier is threefold firstly; date of applicability of impugned amended notification. Secondly; competence of the authority and thirdly vires of impugned amended notification. 16. Examining the first contention as to prospectively or otherwise of the impugned amended regulations, general rule is that where any statute that does not set out a date on which it is to come into force than date of enforcement is the day it receives the assent from the assenting authority (i.e, President in case of Central enactment, and Governor in case of Provincial enactments) [Article 75(3) and Article 116(4) respectively of the Constitution, 1973]. See also section 5(3) of General Clauses Act 1897 and section 3 of Sindh General Clauses Act 1956). Where rules, order, regulation or circular having effect of law are issued in exercise of statutory power or delegated authority under any statute, applying ordinary prudence, same shall come into force on the date of publication in the official Gazette. (See section 20-A of General Clauses Act, 1897 and section 19-A, read with section 2(41) of Sindh General Clauses Act 1956). Same principle would apply where any amendment, addition, modification or substitution made in rules, order, regulation or circular made or issued under any statute. It needs no authority to say that Klbordinate delegated legislative instrument applies prospectively unless now to promulgate it retrospectively is specifically conferred or delegated under statute if any authority is needed one may see Hashwani Hotel Ltd. v. Federation of Pakistan PLD 1997 SC 315 and M/s. Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992. SCMR 1652 and Dadabhoy Cement Industries Ltd. v. NDFC 2002 CLC 166 @ pp.187, 191.. 17, General Clauses Act 1897 and Sindh General Clauses Act 1956 were enacted with object to shorten the language used in Federal and Provincial Statutes respectively passed by the respective legislature. Provisions of General Clauses Act, unless a different intention appears in any statute are to be read as integral part of any statute (See section 31 of General Clauses Act 1897 and section 28 of Sindh General Clauses Act 1956). There are two types of statutes one that mandates applicability of subordinate legislative instruments framed thereunder, after publication in the official Gazette and other type do not specifically require publication. Both the situations are catered by Sindh General Clauses Act 1956. First mentioned situations attended by Section 22 ibid, which require draft rules or by-laws to be published, inviting objections thereto, before it is enforced and subject to concurrence of authority, if so required. Second mentioned subordinate legislative instruments are attended by Section 19-A ibid, which necessitate publication of all such instruments in the official Gazette. Regulations framed under section 21-A of Sindh Buildings Control Authority falls in second category of the legislative instruments. Subsection (3) of section 21-A ibid, does not require Regulations framed thereunder to be published, but such is now mandated under Section 19-A read with section 2(41) of the Sindh General Clauses Act 1956 (Sindh Amendment). Often defence is taken that law does not require publication of any notification, rules and or circular: affecting rights of citizen, such defence is now no more available. Section 2(41) and 19-A of Sindh General Clauses Act, 1956 reads as follows: ' Section 2(41). Notification.--Notification shall mean a notification published under proper authority in the Official Gazette. ' Section 19-A. Rules and orders, etc. To be published.---All rules, notifications, orders, regulations and circulars having the effect of law made or issued under any enactment shall be published in the official Gazette. ' This Court in the case of Cowasjee v. Multiline Associates (PLD 1993 Kar. 237 at 262-263 while placing reliance on Bindra's Interpretation of Statutes and General Clauses Act (a page 561 of 4th edition) held "when an Act enable an authority to make regulations, a regulation which is validly made under the Act i.e, which is intra vires of the authority, should be regarded as though it were
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itself an enactment". "Therefore, in our opinion the said regulations in the present case have been clothed with statutory authority by virtue of section 21-A of the Ordinance. 18. In this view of matter, SB & TP Regulations 2002 framed by the "Authority" having statutory blessing of section 21-A, SBCO 1979, being delegated legislative instruments, has the effect of law. As required, under section 19-A read with section 2 (41) of Sindh General Clauses Act 1956, SB&TPR 2002 was published in Sindh Government Gazette Extr. Pt. I, page 388 dated 4th April 2002. Per Regulation 11.2, it came into force at once i.e, on the date of publication. The requirement of publication of any delegated legislative instrument in the official gazette is equally applicable to all amendments made thereunder (one may also see Muhammad Suleman v. Abdul Ghani PLD 1978 SC 190 @ 192B, Muhammad Akram v. Zahid Iqbal 2008 SCMR 1715, Arnjad Mirza v. Deputy Controller of Buildings PLD1983 Kar. 579 19 in the case of Muhammad Ishaq v. Chief Administrator Auqaf PLD SC 1977 639, it was held that legislature never intended to deprive the citizen of valuable rights by merely printing a notification and not giving it proper publication. Notification after printing must be passed on the sales depot and displayed prominently. In Mushtaq Ahmed Khan v. Government of N.-W.F.P. PLD 2000 Pesh. 73; Order confiscating vehicle was passed on 3-4-1999 on the basis of draft rules dated 5th December, 1998. The rules empowering confiscation were notified in the official Gazette on 5-4-1999. Court struck down the impugned confiscation on the ground that notification cannot be enforced retrospectively. In the case of Government of Punjab v. United Sugar Mills Ltd. 2008 SCMR 1148 Court held 'notified order' would mean notification through publication in the official Gazette and not by passing an order and keeping the same in the office of appellant" (One may also refer to Chief Administrator Auqaf v. Amna Bibi 2008 SCMR 1717 para.8 @ 1721). In the case of Saghir Ahmed v. Province of Punjab PLD 2004 SC 261, apex Court reiterated above principles at page @ 270 para.12 it was held "However we would like to observe that by virtue of insertion of section 20-A in the General Clauses Act 1897 by Ordinance XXXIII of 2002, all Rules, Orders, Regulations and Circulars having the effect of law made or issued under any enactment are being published by the Federal Government in the official Gazette. The Provincial Governments are expected to follow suit so as to inspire public confidence in the policy decisions and to promote the system of good governance and transparency" 20. In the instant case impugned Regulation 25-12.2 was substituted through Notification No,SO (LAND)HTP/KBCA-3/39/2000 dated 29 October 2002, which was published in the Sindh Government Gazette Ext. Part IA, page 32 on 16.10.2008. In view of foregoing discussion, we are of the considered opinion that impugned Notification substituting Regulation 25-12.2, subject to legitimacy, would apply prospectively from the date of its publication in the official Gazette dated 16-10-2008 and not retrospectively from the date mentioned on the title of the Notification. 21. There is wisdom in enacting sections 2(41) and 19-A of Sindh General Clauses Act, 1956 that necessitates publication, in the official Gazette, of subordinate legislative instruments effecting rights, duties and obligations in any manner of any class of persons. The publication of subordinate legislative instrument in the official Gazette would, as held in the case of Saghir Ahmed v. Province of Punjab PLD 2004 SC 261, inspire public confidence in the policy decisions and promote the system of good governance and transparency. (One may also gainfully see Chief Administrator Auqaf v. Amna Bibi 2008 SCMR 1717). Merely issuing a notification without publication in official Gazette and keeping it in the closet shrouded in the secrecy is opposed to public policy and law, otherwise, it would add another tool of oppression in the arsenal of the public functionaries, who may arbitrarily or selectively confer or impinge any privilege, benefit or right of a person at their whims and fancies for extraneous consideration. 22. Adverting to second objection as to competence of the "Authority" to amend SB&TPR 2002 issued in exercise of power conferred under section 21-A of SBCO, 1979.
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23. Government of Sindh, under section 4 of SBCO, 1979 has consigned to itself power to appoint, through a notification, any Body Corporate, Council, or any department of such body corporate, Council or Government Department or Functionary or any Organization as an "Authority" . The Chief Executive or in charge of such body corporate, Council, Government Department, functionary or any organization acts as chief executive of the "Authority". Appointment and conferment of power to frame Regulations on the "Authority" under the SBCO, 1979 is only one of its kind. The Authority notified, is known after the name of the area for which it is notified and could sue and be sued in such name. Generally and desirably any "Authority" established or constituted under any statute is a body corporate and juristic person, having perpetual succession, common seal with rights and liabilities and could sue and be sued, many of which attributes are missing in the "Authority" appointed under the SBCO, 1979. We are not called upon nor it is our domain in present petition to examine the wisdom of the legislature to provide such a wide variety of entities that could be crowned as "Authority", such options and choice vesting with the Government gives leverage to the executive for manipulation, exploitation and uncalled for intervention and power play between aspirant contender entities to assume control and wear another hat of "Authority". In fact with every change of the regime there is shifting of preference in appointment of "Authority" by the executive, which has proved to be counter-productive and impendent in consistency of policy and institutionalization of the Karachi Building Control Authority. 24. None of the law officer of KBCA or CDGK was able to provide notifications appointing "Authority" in terms of Section 4 of SBCO 1979. Mr. Anwar, Senior Law Officer KBCA was able to locate and provide copies of Notifications, he was also not sure whether all have been published or not, therefore we can only presume same were duly notified and published for the purpose of instant petition. For lack of permanent body corporate, KBCA is disarrayed and disorganized as there is no centralized, uniform command and control system in place, oscillation of power and functions of KBCA between, vying power brokers, is nothing but disservice to the citizen of this Province. It is high time Provincial legislature may examine and amend section 4 of the SBCO 1979 that may provide for permanent "Authority" as body corporate, having perpetual succession, common seal with rights and liabilities that could sue and he sued. 25. From the copies of Notifications made available, it appears that through (1) first Notification dated 17-3-1979 published on 18-3-1979 KDA was designated as Authority, (2) Second Notification dated 31-5-1979 published on 28-2-1980 superseded first; appointing Master Plan and Environmental Control Department, (MP&ECD) as Authority (3) Third Notification dated 29-10-1991 superseded MP&ECD by KMC (4) Fourth notification dated 25-4-1996 again appointed KDA as "Authority" (5) Fifth Notification dated 4-4-2002 crowned 'Housing and Town Planning Department, Government of Sindh, as "Authority" (6) Sixth Notification dated 10-4-2004 Nazim, CDGK was bestowed such "Authority" (7) Seventh Notification dated 24th April 2008 designated "Minister", Local Government, Kachi Abadis and Sports Development' Department, Karachi as "Authority" for whole of the Province of Sindh, with immediate effect. 26. Mr. Badar Alam, learned counsel for the Petitioner , contended that on the date of publication of the impugned Notification in the official Gazette dated 16th October 2008 Nazim, CDGK was the "Authority", therefore, impugned notification issued by the Secretary, Housing and Town Planning Department; Government of Sindh is without jurisdiction. Argument in the first sight appears to be attractive, when examined carefully was found factually incorrect. On the date borne on the notification i.e, 29th October 2002, charge of the "Authority" vested with Housing and Town Planning Department, Government of Sindh. However, it was published on 16th October 2008, when "Minister", Local Government, Kachi Abadis and Sports Development Department, Karachi was holding charge of the "Authority".
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27. As observed above, that the subordinate legislative instruments comes into the force on the date of publication, provided same was issued "under proper authority" (See sub section (41) to section 2 of General Clauses Act, 1956). Thus on the date of Notification dated 29th October, 2002 Housing and Town Planning Department, Government of Sindh, had the legislative competence under Section 21-A of SBCO, 1979 to frame and or to amend the Regulations framed thereunder. The legislative competence of the "Authority" is judged and examined from the date of exercise of power to frame regulation and not from the date of publication of such subordinate legislative instrument. As noted above, a subordinate legislative instrument is effective from the date of publication of notification in the official Gazette and not merely on the date of making it. In this view of matter on 29th October 2002 the date of impugned amended regulation, Housing and Town Planning Department, Government of Sindh, was the competent "Authority". It matters not that same was published later on 16th October 2008 during the tenure of the successor "Authority" i.e, "Minister", Local Government. Very fact that the successor Authority, has taken no exceptions, to the publication of…
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