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Petitioner: ZAHEER AHMED CHAUDHRY and 9 otherss VS Respondent: CITY DISTRICT GOVERNMENT, JUDGMENT
Court Name: Sindh High Court Judge(s): Sajjad Ali Shah, Muhammad Mujeebullah Siddiqui Title:ZAHEER AHMED CHAUDHRY and 9 otherss vs CITY DISTRICT GOVERNMENT,
JUDGMENT
Reported As: 2006 YLR 2537 Result: Petition dismissed Judgment JUDGMENT ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The petitioners who are residents of the area known as Bath Island have filed this petition seeking declaration that the respondents Nos.3 and 11 to 13 have violated their constitutional rights guaranteed under Articles 9, 14, 23 and 24 of the Constitution and that the respondents Nos.1 to 3 have acted discriminately against the petitioners contrary to Article 25 of the Constitution and that Plot No,61-C located in Bath Island cannot be converted from low- density residential plot to high-density flat-site by respondents Nos.1 to 3 without complying with the mandatory provisions of Regulations, 2002 and K.D.A. Order, 1957 and that the respondents Nos.1 to 3 have no powers authority or jurisdiction to convert the said plot from low-density to high- density or permit the construction of multistoreyed building contrary to law and/or the land sale conditions and that the approved plan granted by respondent No,1 for construction of multistoreyed building on the above plot is illegal and the construction is liable to be demolished. ' The petitioners have further sought direction to the respondent Nos.1 to 3 to jointly and severally demolish building works and building carried out on the above plot and that respondent No,3 should cancel/forfeit lease of the impugned plot for violation of the law including Regulations, 2002 and the terms of the land sale conditions. ' The petitioners have further prayed that the respondent No,10 be restrained from registering any conveyance and or interest in respect of any part of the building and/or the impugned plot in favour of any person whatsoever, and respondents Nos.5 to 8 be restrained from issuing any electricity, gas, telephone and sewerage connections to the building on the impugned plot. They
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have further sought permanent injunction against respondents Nos.1 to 3, from permitting conversion of the impugned plot from low-density residential use to any other use in the future. ' It is stated by the petitioners that according to standard land sale conditions in Bath Island no building can exceed more than three storeys including ground floor and 2 third of the area of the plot is to be left as open space and the open space shall be free from any erection or obstruction subject to the following:-- (a) Steps on the ground floor and platform will be excluded from the built up area. (b) Open balconies abutting on the outer wall of the house will be excluded from the built-up area. (c) Open staircases will be excluded from the built-up area. (d) Covered staircase and open or covered balcony inside the internal courtyard will be included in the built-up area. (e) Continuous or more than 20 feet gallery will not be allowed as free open area, but will be included in the built-up area. (f) Covered passage on the ground floor and covered or open passages on the upper floor will be included in the built-up area. (g) Porches, Bay windows and similar projections will be included in the built-up area; ' It is further alleged that according to standard agreement/lease of the plot sold through auction, inter alia, clearly states that the agreement/lease shall be subject to the terms and conditions published at the time of auction. The petitioners have averred that it was noticed in June, 2004 that the owners of the plot (respondents Nos.11 to 13) were constructing a multistoreyed building contrary to the land sale conditions/development scheme of the area as well as the relevant laws. The petitioner No,2 obtained a copy of approved plan. The respondents Nos.10 to 12 had also erected a notice board on the plot showing the details of the approved plan. On examination of approved plan they found the following violations:-- (i) The land-grant/auction-sale and lease conditions of the subject plot only allow a G + 2 floor bungalows on 1/3rd of the plot. The G + 6 floors multistorey approved by KBCS and KMC is in contravention of these zoning rules. (ii) The compulsory open spaces to be 15 feet on the three road sides, and 10 feet towards the adjacent plot. Instead completely inadequate spaces have been kept. (iii) The parking layout shown is violative of the requirements of the Karachi Building and Town Planning Regulations, 2002 (hereinafter called the "Regulations"). (a) Two-way driveway widths are less than 18 feet. (b) Correct stall width of 8 feet are not available. (c) Cars are stacked one behind the other, this is not permissible. (d) A proper layout, with stalls and turning radius, has not been shown. (iv) A KESC substation for this 48,000 + square feet over-seized building has not been provided. (v) The builder is selling flats without requisite KBCA NOC for sale. ' The violations and illegalities committed by respondent No,1 in granting the approval were pointed out, in response whereof the respondent No,2 replied that the building plan was granted by KBCA after clearance from Town Planning point of view. ' It was further stated that the approved plan was in accordance with Karachi Building and Town Planning Regulations, 2002 and the construction was raised accordingly. ' It is contended that the respondent No,2 did not state whether any public notice was issued for change in the development scheme of the Bath Island or any objections were invited from the residences of the area in which the impugned plot is located. It is also alleged that after the exchange of correspondence the petitioner No,2 received a copy of he letter dated 29th of July, 2004 wherein the Additional Secretary to the Governor expressed alarm as to the deteriorating
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condition of the area known as Bath Island. According to the petitioners the latter expressed concern about following matters:-- (a) Buildings are being allowed to be constructed without providing basic amenity. (b) Residential plots are being converted contrary to the rules. (c) Approved plan is being prepared contrary to the Freedom of Information Act, 2002. (d) The Government required such deterioration to stop immediately. ' Immediate action was required against all concerned officials and report was sought by 10th August, 2004. It is also alleged that no clearance was obtained from respondent No,8 as required under section 12 of the Environmental Protection Act, 1997. It is maintained that the respondent Nos.1 to 3 ignored the letter written by Additional Secretary to Governor and the construction was going on till the filing of the petition. It is urged that the respondents Nos.1 and 2 are in criminal collusion in attempt of respondents Nos.11 to 13 to convert low-density area comprising of Bungalows and low amount of traffic by constructing high-density building more suitable for high-density area which will have adverse effect to (a) on supply of water, (b) choking of sewerage lines (c) affecting the calculation of Municipal services e.g.: collection of garbage, (d) increase in a diesel and patrol and fumes, increase a noise. It will cause further degradation in the already deteriorated Environmental Atmosphere and the development scheme of Bath Island. It is stated that it will affect the quality of life contrary to Article 9 of the Constitution as well as affect the petitioners interest in property contrary to Articles 23 and 24 of the Constitution and that the exercise of the powers by respondents Nos.1 to 3 in favour of respondents Nos.11 to 13 is discriminatory contrary to Article 25 of the Constitution. It is further alleged that the permission to construct multistoreyed building amounts to change the area development plan which cannot be made without obtaining sanction from K.D.A. And after fulfilling the mandatory requirements of Article 40 of K.D.A. Order, 1957. It is also stated that most of the petitioners invested large sums of money by constructing/purchase houses on the representation of the predecessor of respondent No,3 to maintain Bath Island as low-density calm and quiet area. It is also contended that permission to construct multistoreyed building defeats the purpose of building laws including KDA Order, 1957 and Regulations of 1979. ' The requests Nos.3 and 4 (KBCA) have stated in their counter-affidavit to the main petition that the proposed Building plan for Plot No,61 Bath Island was submitted by the owners through the lessor for approval of construction of the Building comprising ground floor for Car Parking + Ist to 5th floor (residential units) + 6th floor (recreation area). NOC was also issued for ground + six upper floors, NOC was also issued for sale and advertisement of flats. The proposed building plan was approved vide letter dated 24-11-2003. The building was completed structurally up to 5th floor which C.O.S. As required by the approved building plan. They have taken plea that petitioners have filed an application to harass the officials of respondents Nos.3 and 4 and in order to restrain them from performance of their lawful duties. It is contended that the petitioners have no locus standi to file this petition as construction is being raised in accordance with the approved building plan udder the provisions of Sindh Buildings Co: 'rol Ordinance, 1979 and the Karachi Building and Town Planning Regulations, 2002 and that proper notice was displayed on the Notice Board giving required information to the public. ' They have taken plea that the matters pertaining to the sale/lease conditions pertained to Town Planning of the lessor i.e, City District Government Karachi and the proposed building plan was forwarded by the lessor along with NOC. According to them the KBCA has granted approval to the building plan in accordance with law, Rules and Regulations which is in accordance with the provisions of KBTPR, /002 notified by the Government of Sindh. ' The respondents Nos.12 to 14 (owners of the plot) have stated in their counter-affidavit to the main petition that they purchased the plot in the year 2003. The property was originally owned by the defunct KMC and was sold by auction on 6-1-1952. The lease for the plot was executed between
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KMC and the then purchaser on 26-5-1958. In terms of the clause 8 of the said lease deed the said plot and the building or erection built thereon were to be used for residential purpose only and could not be diverted to other use without express consent in writing of the lessor. It is contended that the terms and conditions of the lease did not restrict the construction of any number of the floors, neither there was any height restriction. They have alleged that the building is being constructed by them in accordance with Karachi Building and Town Planning Regulations. ' They have further contended that the petitioners have no locus standi. The petition involves disputed questions of fact, which could not be adjudicated under the constitutional jurisdiction of this Court. The petition is barred by laches as construction commenced in 2003 after proper approvals accorded under the Sindh Buildings Control Ordinance, 1979 and Karachi Building and Town Planning Regulations, 2002, the building has been constructed up to 5th floor and the petition has been filed with mala fide reasons which will not adversely affect the respondents Nos.12 to 14 only but allottees/purchasers of residential units in the building also. It is further alleged that after obtaining proper NOC for sale in terms of Sindh Buildings Control Ordinance 1979, 18 residential units out of 20 have been allotted to third parties who have invested substantial amount and are going to be affected seriously. It is also submitted that without prejudice to their plea that the lease does not contain any restrictions on erection of building, no lease condition can override the express provisions of Sindh Buildings Control Ordinance, 1979 and 2002 Regulations framed thereunder. It is alleged that since lease agreement in respect of the plot under construction does not contain any restrictions regarding the nature of the building to be constructed or pertaining to the floors height etc., therefore, they have not violated any terms and conditions mentioned in their lease agreement. They have supported version contained in the counter-affidavit of respondents Nos.3and 4 pertaining to the submission of proposed building plan and the approval thereof. It is further contended that the approved building plan is in accordance with Sindh Buildings Control Ordinance, 1979 and KBT Regulations, 2002 which categorically cover the Zoning Regulations, Area Standard applicable to Bath Island quarters. They have further taken pleas that changes have been brought about in different areas of Karachi through a notification issued under section 21-A of Sindh Buildings Control Ordinance, 1979 dated 4-4-2002 through which the Authority made Regulations governing the different schemes of Karachi. It is submitted that the petitioners have not challenged the said Regulations in this petition. Regarding letter of the Additional Secretary to Governor they have stated that mere expression of opinion of the said officer cannot override the Ordinance or the Regulations under which the plans of the building have been approved. They have specifically pleaded that density standards as provided under the Regulations have been maintained and that the area has always had buildings containing flats and that the assertion that area only contained Bungalows is false and denied. They have contended that under the leases produced by the petitioners, construction was allowed up to three storeys and the area is already a high-density area. The allegation that the construction shall affect supply of water has been denied and has submitted that there is no question of violation of Article 9 of the Constitution. According to them there is no question of discriminatory treatment It is also alleged that the flats being constructed by them are of high density is not correct. They have specifically denied the averment that with the approval of building plan in their favour low-density flats site has been changed to high-density flats and that even before the acquisition of property by the respondents Nos.12 to 14 there were residential units in form of apartment on plot under construction. They have further alleged that the plan was approved by MP and ECD Department and Environmental NOC was given on 22-11-2003. It is further alleged that all the assertions as to the amenities were taken into consideration by the competent authority while approving the building plan and that the plea that there would be Environmental degradation is not sustainable, as number of high rise buildings exist in the adjoining area. They have alleged that the construction of building by them does not
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amount to change of areas building plan. They have alleged that KDA Order, 1957 has been repealed and therefore no reliance can be placed on Article 40 of the repealed statute. They have contended that there is no relaxation of the rules and the building plan has been approved in accordance with the provisions contained in the Sindh Buildings Control Ordinance and Regulations, 2002. ' Mr. Arshad Mohsin learned counsel for the petitioners Nos.9 and 10 filed power on the date of hearing of the petition and sought permission to withdraw the petition of behalf of the petitioners Nos.9 and 10. None of the Advocates present raised any objection and consequently the petitioners Nos.9 and 10 were allowed to withdraw their names were deleted from the array of the parties. ' We have heard learned Advocates for the parties. Mr. Abdul Rehman learned counsel for the petitioners Nos.1 to 7 addressed main arguments on behalf of the petitioners and Mr. Yousuf Moulvi Advocate for petitioner No,8 adopted his arguments. Mr. Abdul Rehman learned counsel for the petitioners Nos.1 to 7, Mr. Kamal Azfar learned counsel for the respondents Nos.3 and 4 and Mr. Abid S. Zuberi learned counsel for respondents Nos.12 to 14 filed their written synopsis of the arguments as well. The learned Advocate for the petitioners has reiterated the contentions raised in the petition and has added new dimensions to the contentions as well. They have submitted that at the time of issuing the lease, land was owned by Karachi Municipality the predecessor of respondent No,1 City District Government Karachi who is current lessor. According to them the preamble of lease shows that the plots in the area were sold under the rules for management and disposal of waste lands within the Municipal limits of the Karachi, which according to them is known as development scheme or a building scheme under the legal mechanism. According to them this position has been upheld by learned Single Judge of this Court in the case of Ardeshir Cowasjee v. Naqi Nawab PLD 1993 Karachi 631. ' They have submitted that there is no statutory notified scheme in respect of the area known as Bath Island and as such no statute per se is applicable to this area and therefore the sale of the land was in consistency with the provisions of the rules for the management and disposal of waste lands by way of public auction. They have further contended that the land was sold on the terms and conditions contained in the auction conditions as a part of the lease. They have however admitted that the sale conditions include the condition, "the lessee shall comply with and observe all the Rules and Bye-laws of the lessors for the time being in force." They have further placed reliance on a judgment from British jurisdiction in the case of Elliston v. Reacher (1908) 2 Ch, D.374. However we are of the opinion that this judgment is in the peculiar circumstances of the said case and is not a precedent in the contest of the laws prevailing in Pakistan. ' They have submitted that the petitioners are the residents of area known as Bath Island and therefore they have locus standi to file this petition seeking the enforcement of the law. ' Dealing with the objection on the point of the lahces they have submitted that the principle has been clarified by the Honourable Supreme Court in the case of Excell Builder's v. Ardeshir Cowasjee 1999 SCMR 2089. Explaining the factual position they have maintained that during the pendency of the petition it was discovered that factually the process of digging the foundation began on the plot in November, 2003 but according to them it is conceded by the Advocates for respondents Nos.12 to 14 that Plinth level reached on 21st April, 2004. According to them at that stage efforts were made by the petitioners to obtain the approved plan of the construction but the matter was delayed by the respondents Nos.3 and 4. They have submitted that the copy of approved plan was furnished in July, 2004 and thereafter a legal notice was sent on 4th August, 2004 and actions were commenced against the respondents on 13th of August, 2004. According to them the delay was caused on account of the delaying tactics on the part of the respondent No,3 and therefore there is no question of the lathes because the petitioners were diligently pursuing all remedies available to them under the law to enforce their right and obtain enough information to file the petition.
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' Learned Advocates for the petitioners have thereafter highlighted the violations of Karachi Building and Town Planning Regulations, 2002 in issuing the approved plan. According to them the construction being carried out on the plot is admittedly a flat site and is not a Bungalow and is zoning regulations/area standards in respect of construction are stated in Chapter 25 of the Regulations, 2002. They have further argued that the approved plans have been issued by the respondents Nos.3 and 4 in excess of jurisdiction and contrary to the Karachi Building Control and Town Planning Regulations, 2002 is void and consequently the construction on the basis of said approved plan is also void. They have urged that a distinction is to be made wrherein approved plan is issued in accordance with law and thereafter the builder after deviating from the legal approved plan applied for regularization and in the case where the approved plan itself is in violation of the law and void which cannot be subsequently rectified. The learned Advocates for the petitioners have heavily relied on the law laid down in the case of Ellistion v. Reacher referred to above and have contended that the plots owned by the petitioners and the respondents Nos.11 to 13 were sold in lots subject to restrictions which were uniformly imposed on all the lots which was done consistently with some general scheme of development. They have argued that the reason for imposing restrictions were to ensure that the town planning of the area was at all times maintained. They have further submitted that in the decision Elliston v. Reacher there was no emphasis on the point that the restrictions should be specifically mentioned in the documents. ' All that is stated is that the intention should be ascertained that the property was sold on the basis of these conditions on the basis that equity follows the intent and not the form. According to them the test therefore is not one written in stone but is to be ascertained from the intention that existed at that time and place. ' Learned Advocates for the petitioners have placed reliance on the concepts of the common law of England and the case-law from England and Australia. We will presently consider as to how much these concepts are relevant in the context of statute law in the legal dispensation prevailing in Pakistan. They have further placed reliance on the principles laid down by this Court in the case of R.G. Sehwani Co-operative Housing Society Limited v. Haji Ahmed PLD 1983 Karachi 11, wherein the concept of building scheme was not upheld on the basis that, "it has not been fully established that the restrictive covenants were for the common benefit of the members of the Society in general. The second reason for not applying this principle is that the restrictive covenants in the lease are not absolute and are conditional". They have explained that the applicability of concept of building scheme was distinguished in the above case on the basis that the locality being considered was Co-operative Housing Society and no issue of common benefit was actually demonstrated to the Court in that case. According to them in the present case the restrictions were imposed to reserve the town planning conditions in the area. They have further referred to the decision in the case of Naseer Ahmed v. Hafiz Muhammad Ahmed 1984 CLC 340 in which also concept of building scheme was not accepted and have attempted to distinguish it on the basis that non-mention of legal concept of building scheme being an exception to the general rule in respect of privity of contract was not considered in that decision. In this regard they have again placed reliance on a Single Bench judgment of this Court in the case of Ardeshir Cowasjee v. Muhammad Naqi Nawab PLD 1993 Karachi 631. ' They have further argued that the application of Building scheme in terms of fundamental rights has never been enforced in the constitutional jurisdiction of Pakistan per se. According to them no guidance can be taken from England as there is no concept of fundamental rights in that jurisdiction on account of absence of written Constitution. They have further developed their idea contending that there are two methods in which the restrictive covenants can be directly or indirectly enforced. First, in the case of owner of the plot the restrictive covenants can be enforced directly through suit, as constitutional petition is not maintainable against private citizen.
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According to them it is most likely that the owner of the plot on permission from the City District Government Karachi who have varied the lease conditions, as a defence. Secondly, against the City District Government. It would be an action to prevent the City District Government to vary terms of the lease. This can be done in either suit or in a constitutional petition and the action can be maintained on the basis that the City District Government cannot vary the terms of the building scheme under the law thereby permitting the owner of the plot to raise construction in violation of the scheme. According to them the question which needs to be answered is can City District Government Karachi vary terms of the lease without informing the other lessee within building scheme? ' They have further submitted that restrictive covenants being a right in rem are attached to the property. They have maintained that in accordance with the definition of the property given in…
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