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Petitioner: STANDARD CHARTERED BANK LIMITED through Attorney VS Respondent: KARACHI JUDGMENT
Court Name: Sindh High Court Judge(s): Aqeel Ahmed Abbasi, Muhammad Junaid Ghaffar Title:STANDARD CHARTERED BANK LIMITED through Attorney vs KARACHI
JUDGMENT
Reported As: 2014 YLR 1689 Result: Petition dismissed Judgment JUDGMENT ' MUHAMMAD JUNAID GHAFFAR, J.---Through instant petition the petitioner has challenged the actions of the respondent Nos.1, 2 and 3 for allowing the alleged conversion of the plot from a residential bungalow to .a commercial-cum-residential project as well as the plan approved thereon in respect of Plot No, 9, Civil Lines Quarter No, 7, Karachi. It is stated that the petitioner which is a Banking Company under the Banking Companies Ordinance, 1962 is carrying on the business of Banking as defined in section 7(1) of the Banking Ordinance, 1962 and is the owner of Plot No, 17, Civil Lines Quarter No, 6, Karachi. The petitioner is aggrieved by the construction of a high-rise building having ground plus 17 storeys on Plot No, 9 Civil Lines Quarter No, 7, Karachi and has submitted that the category of plot in question is residential and its conversion to a commercial category is illegal and unlawful. It is further stated that the Town Planning NOC issued by the respondent No,2 is not in conformity with the original lease conditions and no Town Planning Approval has been obtained either from respondent No, 1 or the respondent No, 3. According to the petitioner, the regulations as contemplated in the Karachi Building and Town Planning Regulations, 2002 ("KB&TPR") have not been complied with and have been violated at the time of granting approval of the plan in respect of subject plot, particularly regulations No,24-2.4, 24-2.5 and 24-6.1. It has been further alleged that Regulation 3-3.1.1, 3-3.1.2 as well as Regulation 25-1.5 have also been violated while granting approval by the respondents. According to the petitioner, this is a case of illegal conversion of land use as originally the plot was for construction of ground plus one storey and now it has been unlawfully converted into residential-cum-commercial category without any permission by the lessor or respondent No 1 and further no approval from respondent No, 7 has
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been obtained for such conversion as required under section 12 of the Pakistan Environmental Protection Act, 1997. 2. Mr. Abdur Rehman learned counsel for petitioner has contended that the conversion of the plot in question by the respondents from residential bungalow to a flat site without complying with the legal procedure and the act of allowing the construction of a multi-storeyed building on subject plot by respondents is illegal, ultra vires and void. It is further contended that in view of the restrictive covenants contained in the lease executed in favour of the petitioner by the respondents No,1, the version of a residential bungalow to that of a flat site in favour of the respondent No,8 is not permissible udder the doctrine of promissory estoppel. Per learned counsel, such conversion cannot be done under the Master Plan Byelaws 2003 as it is permissible only on such roads which have been declared to be commercial by the respondent No, 1. It is further contended that the conversion of the plot from residential to residential cum-commercial cannot be done without obtaining an Environmental Impact Assessment (EIA) as required under section 12 of the Pakistan Environmental Protection Act, 1997 ("1997 Act"). Learned counsel also referred to Sindh Building Control Authority's letter dated 14-3-2013 in which the category of plot has been shown as residential cum commercial and contended that the SBCA is not the appropriate authority to decide the category of the plot and it is only the respondent No, 1 (KMC) which can allow any conversion of the plot. Learned counsel for the petitioner referred to Regulation No, 18-4 of KB&TPR and contended that it is the Master Plan Group of Offices (MPGO) as defined in Regulation 2-78 of the said Regulations, which has the authority to allow any such conversion. Learned Counsel relied upon the counter affidavit filed by the respondent No, 1 and contended that as per record of respondent No, 1 the category of plot is residential and not residential-cum-commercial. It has been further contended that Regulation 18-4 provides a complete mechanism for change of land use and the respondent No, 8 has not followed Regulation No, 18-4.2.2 for conversion of the plot. Learned counsel then referred to Regulation 25-2 and specifically Regulation 25-9.2 and 25-9.3 of KB&TPR and contended that subject plot does not fall within the old city areas as it is only a portion of Civil Lines Quarters which is mentioned in Zone "C" under Regulation 25-9.3(g), therefore per learned counsel, the Floor Area Ratio ("FAR") as permitted under Regulation 25-9.3.2 i,e,1:4 will not be applicable and instead the subject plot falls under Zone "B" and the FAR of 1:2 as defined under Regulation 25-9.2.2 would be applicable. According to learned counsel, even otherwise the SBCA has no authority to formulate these regulations and it is only the lessor or the respondent No, 1 who can determine and allow any such conversion and so also formulate regulations in this regard. Learned counsel further submitted that the Town Planning of the City is the domain of respondent No, 1 and not of SBCA. Per learned counsel even otherwise, the permissible FAR is 1:2 in view of the Regulation 25-4 of KB&TPR as the same is applicable for a flat site category. It was next contended that respondent No, 8 is violating the compulsory open space requirement between two blocks as required under Regulation 25-1.5. It was also contended that the respondent No, 8 is also violating regulation 25-2.2., as the height of the building is also beyond permissible limits. Learned counsel then referred to a letter dated 30-11-2012 issued by the office of the Deputy Commissioner, South Karachi and contended that as per this record an old bungalow existed on this plot and contended that no commercial activity could be carried out at such premises. It was next contended by the learned counsel that though in the same area, construction of highrise buildings have been allowed but .Insofar as this plot is concerned, no conversion has been allowed by the respondent No, 1 . Per learned counsel each plot is to be dealt with individually and the case of respondent No, 8 is distinguishable from the history and record of other adjacent plots. Learned counsel also referred to the provisions of SBCA 1979 including sections 4, 7-A, 18 and 21-A and contended that Town Planning is to regulate the building plan and by no stretch of imagination this could be applied to the conversion or status of a plot which is in the exclusive domain and authority of the respondent
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No, 1. Learned counsel also contended that there have been serious violations of the 1997 Act and no EIA has been obtained by the respondent No, 8. In support of his contention, the learned counsel for, the petitioner has relied upon the reported cases of (Zaheer Ahmed Chaudhry v. City District Government, Karachi) 2006 YLR 2537, (Mst. (Jmmatullah v. Province of Sindh) PLD 2010 Karachi 236, (Province of East Pakistan v. Nur Ahmed) PLD 1964 SC 451 (Nighat Jamal v. Province of Sindh) 2010 YLR 2624, (Faroog Hamid v. LDA & others) 2008 SCMR 468 and (Shehri C.B.E. v. Government of Pakistan) PLD 2007 Karachi 293. 3. Conversely, Mr. Khawaja Shamsul learned counsel for respondent No, 8 has vehemently opposed the contention of learned Counsel for the petitioner and also raised an objection with regard to the maintainability of instant petition, which according to learned counsel, has been incompetently filed, as the Power of Attorney, on the basis of which instant petition has been filed, has already expired hence the petitioner is not even entitled to argue instant petition. It was further contended by the learned counsel that the instant petition suffers from laches and constructive res judicata as the same petitioner had already filed several petitions on the same grounds, in respect of other adjacent plots and such petitions have either been dismissed or have been withdrawn after compromise between the parties unconditionally, therefore, the petitioner cannot agitate the same cause through instant petition. Per learned Counsel, the same petitioner had earlier filed a Constitutional Petition bearing No, D-3851 of 2012 which contained the similar facts as well as law, whereas even the contents of such petition as stated in the memo of that petition are verbatim the same as are raised in the instant petition. Per learned counsel, the said petition was dismissed by a Division Bench of this Court vide Order/ Judgment dated 18-7-2013 and all the issues raised in the instant petition have already been answered by this Court against the petitioner. Per learned counsel, the plot in question is situated within the old area of the City and is not required to be governed by the provisions as referred to by the learned counsel for the petitioner. On the contrary, per learned counsel, it is to be governed and regulated under the conditions of the lease granted by the Board of Revenue, Government of Sindh, which is the lessor of this plot. Per learned counsel, the category of the instant plot is H-3/1 which has been categorized as residential cum commercial and therefore, there is no requirement for seeking conversion of the instant plot, either by the respondent No, 1 or the MPGO, as they are not the lessors of the instant plot. Per, learned counsel, instant plot is categorized under Zone "C" of Regulation 25-9.3.1 and 25-9.3.2 of KB&TPR and the permissible FAR is 1:4. It has been further contended by the learned counsel that in the same area, i.e Civil Lines Quarter, high-rise buildings have already been constructed and specifically referred to Plot Nos. 18/2, Civil Line Quarter No.6, Karachi, on which a building namely' "ABEEDA TOWERS" has been constructed whereas, in respect of that construction, the present petitioner on identical grounds, had earlier filed a Petition bearing No. D-2343 of 2007 (Standard Chartered Bank Limited v. City District Government and others) which was unconditionally withdrawn by the petitioner on the basis of a compromise, vide order dated 19-3-2009 therefore, per learned Counsel, the doctrine of waiver, acquiescence and constructive res judicata is applicable against the petitioner, hence, the instant petition is liable to be dismissed. Learned counsel further relied upon another judgment dated 18-7-2013 passed by a Division Bench of this Court in the case of Standard Chartered Bank Limited v. Karachi Municipal Corporation in C. P. No. D-3851 of 2012, which according to learned counsel was also in respect of a similar type of Plot bearing No 18/1, Civil Lines Quarter No.6, Karachi, in the same vicinity. Learned Counsel also referred to an Order dated 30-10-2013 passed' in C.P. No. D-3496' of 2013 (Ava Ardeshir Cowasjee and others v. Karachi Municipal Corporation and others) and contended that though this petition was filed by some other petitioner, but the controversy raised therein was similar to one which has been raised through instant petition. Per learned counsel, the same learned counsel who is appearing in this petition had appeared in the said petition and had made a statement before this Court that the
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petition involves same legal question of law which was also involved in Standard Chartered (Supra) which has been dismissed by this Court and prayed that in view of such position this petition may also be dismissed, and on the basis of such statement of learned counsel,, a Division Bench of this Court had dismissed the said petition. Per learned counsel, in view of such position, the learned counsel for the petitioner cannot justify his conduct while once again arguing the identical legal issues without disclosing the fate of earlier petitions on the same subject controversy. Per learned counsel, respondent No. 8 has complied with all the requisite codal formalities while obtaining approval of plan and NOC from respondents and has invested a huge amount in the construction of the said project and has already sold 39 apartments which has created third party interest in their favour, however, in view of an ex parte stay order dated 31-5- 2013 obtained by the petitioner by misrepresenting the facts, respondent is suffering huge losses on daily basis. Learned counsel has referred to a letter dated 15-11-2001 issued by Member, Land Utilization, Board of Revenue, Government of Sindh Karachi, and contended that the Sanad in respect of the instant plot, as well as other adjacent plots, is in the category of H-3/1 and contended that the original lease was not restricted to the residential categoryal one and therefore it does not require either any land use conversion nor required to any charges for such conversion. Learned Counsel - further contended that since the plot 'in question was leased without any condition i.e. The terms and conditions do not require levy of conversion charges for commercial use, hence the lessee of the plot can use it for commercial purpose without paying any increased rent/conversion charges. Learned Counsel further submitted that the project being constructed by the respondent No.8, is purely a residential/flat site project and no commercial construction was intended to be raised, except the provision of a convenience/grocery store exclusively for the use and benefit of the residents of the project, which nowadays is not considered to be a commercial activity, rather is to be termed as a provision for exigencies of the residents of the said project. However, the learned Counsel on instructions submitted that if directed, the respondent No.8 isready to drop the provision for such construction. Learned counsel further referred to a judgment dated 9-8-2001 passed in C.P. No. D-1711/1999 (Messrs Murtaza Builders v. Karachi Buidling Control Authority and others) and contended that this case was also in respect of a plot within the same vicinity i.e. Plot No. 20/1, Civil Lines Quarters, Karachi, and all the objections raised in the instant petition have already been answered by this Court in the said judgment and further contended that the respondent No. 8 was also entitled to be accorded the same treatment as has been accorded to owners of various other plots in the same vicinity and therefore the instant petition is liable to be dismissed. In support of his arguments learned Counsel for respondent No.8 has relied upon the- case of Zaheer Ahmed Chaudhry v. City District Government, Karachi (2006 YLR 2537), R.G. Sehwani Co-operative Housing Society Ltd., v. Haji Ahmad and others (PLD 1983 Kar. 11), Mir Sahib Jan v. Janan (2011 SCMR 86), Ardeshir Cowasjee and 7 others v. Karachi Building Control Authority (KBCA) through Chief Controller of Buildings, Karachi and 3 others (PLD 2006 Kar. 63) and Jawad Mir Muhammad and others v. Haroon Mirza and others (PLD 2007 SC 472). 4. Mr. S. Sultan Ahmed learned counsel appearing on behalf of respondent No. 1,though admitted that the respondent No. 1 is not the lessor of the plot, but submitted that the chant e of land use is the prerogative of the respondent No. 1 and as per their record no application has been made by the respondent No. 8 for any such conversion. Learned counsel contended that the respondent No. 1 is the appropriate authority for categorization/conversion of any plot on payment of appropriate charges. He has referred to section 40 as well as sectionl92 of the Sindh Local Government Ordinance, 2001 (SLGO) and contended that the Council has approved the Master Plan Byelaws 2003 for change of land utilization and in view of this, per learned counsel, it is the respondent No. I which has the exclusive authority to allow conversion of any plot in the city of Karachi. Learned counsel also referred to Regulation 18-4.2.1 of (KB&TPR) and contended that MPGO is the
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appropriate authority to allow any such conversion. Learned counsel further contended that though instant petition does not merit any consideration, however, prayed that directions be issued to the respondent No.8 to pay/deposit the requisite charges of conversion of the plot in question whereafter, respondent No.1 will have no objection if such construction is raised on subject plot. In support of his submissions, the learned counsel referred to the case of Sheikh Naeem Ahmed and others v. Province of Sindh and others (2006 CLC 1231), Jawad Mir Muhammad and others v. Haroon Mirza and others (PLD 2007 SC 472), Youth Enrichment Network (Pvt.) Limited v. Karachi Building Control Authority through Chief Controller of Buildings and another (2009 CLC 484), Ghulam Haider v. Muhammad Ayub (2001 SCMR 133), Nighat Jamal v. Province of Sindh and others (2010 YLR 2624), Mst. Ummatullah through attorney v. Province of Sindh through Secretary Ministry of Housing and Town Planning, Karachi and 6 others (PLD 2010 Karachi 236) and an unreported judgment in the case of Abdul Wakeel v. EDO Revenue Karachi and others in C.P. No. D-216 of 2009. 5. Ms. Afsheen Aman learned counsel appearing for respondent No. 2 (SBCA) submitted that the plot in question falls under Zone "C" vide Regulation 25-9.3.1 and 25-9.3.2 and the building plan has been approved as residential-cum-commercial with FAR of 1:4. 6. Though, Board of Revenue, Government of Sindh, was not impleaded as a party by the petitioner in the instant petition, however, in view of the arguments of learned Counsel for the parties and for the reason that respondent No. 8 claimed that Board of Revenue is actually the lessor of subject plot, and not the respondent No. 1, therefore on 16-12-2013 we deemed it appropriate to issue notice to Board of Revenue at the request Mr. Ghulam Shabbir R. Shaikh learned Advocate for Board of Revenue, Government of Sindh, who was present in Court in some other case, Accordingly on 23- 12-2013,Mr. Ahmed Pirzada learned counsel for the Board of Revenue had shown appearance and comments were filed on their behalf,. Copy of which was supplied to all the counsel including counsel for the petitioner. The Board of Revenue has taken a stance that they are the lessors of the subject plot and have renewed the lease of the subject plot for a further period of 99 years from 1- 8-1962 to 31-7-2001 on 1-10-2012 after receiving necessary charges by the petitioner. It has been further stated that as per their record, the category of the plot is H-3/1, which is categorized for Residentialcum-Commercial and does .Not require any conversion of the category of the plot in question as alleged by the petitioner or the learned Counsel for respondent No.l. Learned Counsel for Board of Revenue in fact opposed the petition and supported the stance of respondent No.8 on the factual as well as on legal plane. 7. Mr. Abdur Rehman learned counsel for petitioner while exercising his right of rebuttal has referred to a current Power of Attorney filed through a statement before this Court and contended that the subsequent power of attorney is in continuation of the earlier Power of Attorney and as such all the acts purported to have been done under the previous Power of Attorney, stood ratified by the subsequent Power of Attorney. Learned counsel also challenged the contention of the learned counsel for respondent No. 8 with regard to the category of the plot as certified by the Board of Revenue through its Sanad dated 4-12-2013 and contended that initially the category of the plot was H-3 and not H-3/1 and the record of all the lands and ownership is being maintained by the respondent No. 1 since 1947 and therefore, the Board of. Revenue has no lawful authority to determine any category of the plot. 8. We have heard all the learned counsel and have perused the record and the case-law relied upon by all the counsel. By consent the instant petition is being decided at Katcha peshi stage. 9. At the very outset, we had asked , the learned counsel .For the petitioner that as to how and in what respect, the judgment dated 18-7-2013 passed in Standard Chartered (Supra) is not applicable in. The instant petition. Learned counsel for petitioner, though admitted that some what similar controversy was involved in Standard Chartered (Supra), but contended that there are some other issues which have been raised in the instant petition which were not raised earlier,
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hence not covered by the judgment of this Court in Standard Chartered (Supra). To appreciate this contention, we have meticulously gone through the said judgment in this context, and have examined the contents of the memo of both the petitions as the memo of petition in the case of Standard Chartered (Supra) was placed on record through a statement dated. 12-11-2013 by the learned counsel for respondent No. 8 (at page 511 of part 2 of the file) and have found that in fact, the contents of the memo of instant petition are verbatim similar to the contents of the memo of petition in the case of Standard Chartered (Supra) which already . Stands dismissed by a Division Bench of this Court vide judgment/order dated 18-7-2013. The precise controversy, which was raised in Standard Chartered (Supra) and as has been raised in the instant petition are exactly the same, that is, whether the respondent No: 8: is entitled to construct a ground plus 17 storied apartment building on Plot No, 9, Civil Lines Quarter No. 7, Karachi as according to the petitioner such construction of the building would amount to a change of land use from residential to a flat site and thus it would violate the KB&TPR, and secondly such construction was being carried out by the respondent No. 8 without obtaining an EIA (Environmental Impact Assessment under section 12 of the 1997 Act. Learned counsel for the petitioner could not satisfy this Court as how the facts and the legal issues involved in the instant petition are distinguishable from the facts and the controversy as raised in the case of Standard Chartered (Supra). We may observe that a Division Bench of this Court in the said judgment, after a very detailed and elaborate examination of various provisions of relevant law, rules and regulations as well as the entire case-law on the subject as relied upon by the parties has decided both the issues against the. Petitioner. With regard to the objection that the builder was required to obtain an EIA the Division Bench of this Court concluded that the petitioner failed to make out a case requiring the respondent/builder to obtain an EIA in terms of section 12 of the 1997 Act. It will be advantageous to reproduce the relevant finding of the Division Bench hereunder:-- 9. "In our respectful view therefore, it would be seriously misleading to read the 1997 Act without keeping in mind that the legislature has sought to achieve two objectives. On the one hand, it has balanced the competing (and perhaps to a ' certain extent conflicting) demands of describing environmental issues in broad and expansive terms and yet keep the requirements being imposed firmly anchored within a manageable framework at any given time and for the time being. On the other hand, it has also ensured that the anchor so provided does not become an unbreakable (and therefore unacceptable) chain that prevents a dynamic response to ever changing circumstances.. The learned Division Bench in SHEHRI C.B.E. v. Government of Pakistan and others PLD 2007 Karachi 293 was perhaps alluding to this vital balancing act when it observed: "Indeed, as rightly submitted by the Attorney General, it is essential to maintain a balance between Industrialization and ecology and that development and environmental protection must progress together. It is in consonance with the above that PEPA, 1997 has been enacted and enforced and thus it mandate should be honoured in its true letter and spirit." (pg. 309) 10. In our view, the 1997 Act and the Environmental Regulations must be read, interpreted and applied in the foregoing manner. ' The interplay between the definitions, subsection (1) and subsection (6) constitutes a dynamic equilibrium that provides certainty at any given time as to what projects require the filing of an IEE or EIA, and also flexibility over time to cater for changing circumstances. It may also be noted that the requirement that the executive agency must adopt a dynamic and proactive approach and periodically update the regulations is a statutory duty. Should the agency fail to discharge it properly, an order in the nature of mandamus may lie in appropriate circumstances to (e.g.) include (or even exclude) a category of project in (or from) the regulations, or to shift an existing category from the first to the second schedule or vice versa. It will be seen later in the judgment that this aspect is of some relevance in understanding…
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