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Petitioner: SALIM GODIL and others VS Respondent: PROVINCE OF SINDH through Secretary and JUDGMENT
Court Name: Sindh High Court Judge(s): Sajjad Ali Shah, Aqeel Ahmed Abbasi Title:SALIM GODIL and others vs PROVINCE OF SINDH through Secretary and
JUDGMENT
Reported As: 2014 CLD 222 Result: Order accordingly Judgment JUDGMENT ' SAJJAD ALI SHAH, J.---In the first set of petitions, the petitioner Salim Godil, through Constitutional Petition No,D-1272 of 2010 has impugned order dated 26-4-2010 passed by the Executive District Officer, Master Planning, Group of Offices, withdrawing commercialization of Plot No,F-96, Block-7, Khayaban-e-Roomi, Clifton, Karachi admeasuring 2133.33 square yards (hereinafter referred to as "the subject plot No,1") on the ground that it being arbitrary, illegal, mala fide, without jurisdiction and in violation of various Articles of the Constitution of Islamic Republic of Pakistan, whereas petitioner in Constitutional Petition No,D-1970 of 2010 most of them are respondents in Constitutional Petition No,D-1272 of 2010 have also impugned the same order on the ground that though the Executive District Officer had rightly withdrawn commercialization of the subject plot but had rejected various other objections of the petitioner such as no adherence to environmental law, inadequacy of utilities and infrastructure, unlawful commercialization etc., on the basis whereof commercialization was called in question. ' Whereas in second set of petitions, initially Ardeshir Cowasjee and another filed Constitutional Petition No,D-2295 of 2009 against Messrs Zubair Ahmed and Muhammad Ali (petitioners in Constitutional Petition No,D-3410 of 2010) challenging variations of Town Planning conditions in respect of approved plan issued by respondent No,4 for constructing a high rise commercial cum residential building containing shops and flats on Plot No,F-94/1. KDA Scheme No,5, admeasuring 1066.66 square yards (hereinafter referred to as "subject property No,II). The petition was disposed of through a consent order with the directions to the respondents to obtain N.O.C. From Environmental Protection Agency, the respondent in consequent to such directions filed Initial
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Environmental Examination (hereinafter referred to as "IEE") before the Environmental Protection Agency who vide letter dated 1-10-2010 directed the respondents to file Environmental Impact Assessm ent (hereinafter referred to as "EIA"). The said letter has been impugned by the respondents in Constitutional Petition No,D-3410 of 2010. ' Since the facts as well as legal point involved in all these petitions being more or less common therefore, we intend to decide all these petitions through this common judgment. FACTS OF CONSTITUTIONAL PETITIONS NOS.D-1272 AND 1970 OF 2010 Briefly, Khayaban-e-Romi on which subject Plot No,I is situated was declared "Commercial Road" pursuant to Resolution No,659 passed by the City Council on 27-6-2005. The petitioner purchased the subject Plot No,1 from Saudi Pak Commercial Bank Limited and after payment of its sale price Pre-Lease Transfer Order was issued by the City District Government Karachi (CDGK) in favour of the petitioner Salim Godil on 16-3-2006 followed by execution of duly registered Lease Deed by the Karachi Development Authority (KDA) in favour of the petitioner on 22-8-2006. It appears that after issuance of Pre-Lease Transfer Order the petitioner applied for change of land use i,e, from residential to commercial (shops, offices and flats) and after payment of all necessary charges the request was advertised in Daily Jasarat and The Nation on 10th August, 2006 calling for objections in writing within fifteen-days from the date of publication and after due public hearing on 23-11- 2006 at 10 a.m., Union Council No,10, Clifton, Saddar Town, Karachi on 14-2-2007 issued its no objection for change of use of the subject plot and upon payment of all necessary conversion charges City District Government Karachi on 4-8-2007 awarded to the petitioner its No Objection Certificate for conversion of land use of the subject plot and ultimately on 26-6-2009 a memorandum evidencing changes of commercialization and rectification in previously registered lease deed and other documents in respect of subject plot were executed between City District Government Karachi and the petitioner Salim Godil. The record further reflects that on 2-12-2009 Karachi Building Control Authority (SBCA) approved architectural concept plan for proposed building comprising basement, ground and first floors shops, second to fifth floors parking, sixth to fourteenth floors flats, with recreation area on fifteenth floor and, thereafter, on 15-12-2009 Karachi Building Control Authority (KBCA) granted to the petitioner its "No Objection Certificate" for advertising the shops and flats to be constructed on the subject plot for sale. ' It appears that after the petitioner advertised the shops, flats etc., for sale, the respondents of Constitutional Petition No, D-1272 of 2010 i,e, late Ardeshir Cowasjee on 15-11-2010 filed Constitutional Petition No, D-260 of 2010 and this Court while issuing pre admission notice restrained the respondents (including Salim Godil) from raising construction on the subject plot. The record reflect that on 8-3-2010 when this petition was taken up for hearing this Court directed the respondent No,1 (Salim Godil) to approach the Environmental Protection Agency and obtained necessary permission regarding their project in terms of the Environmental Protection Agency, 1997 (hereinafter referred to as "Act 1997") and the rules made there under. Thereafter, on 22-3-2010 when this petition was again taken up for hearing, same was disposed through following consent order:-- "Consequently, by consent, this petition is disposed of by directing the builder-respondent No,1 to approach the EDO/MPGO of City District Government for the purpose of obtaining NOC for conversion of the plot in question. The EDO shall accordingly hear the petitioner as well as respondent No,1 and the CDGK on 29-3-2010 at 11-00 a.m. The EDO shall after hearing the petitioner as well as the respondent No,1 and any other concerned person pass a speaking order. If any party is dissatisfied with the orders they may seek their remedy in accordance with law". ' The respondents in Constitutional Petition No,D-1272 of 2010, who are petitioners in Constitutional Petition No,D-1970 of 2010, effected appearance before EDO and filed objections against the commercialization and the EDO Master Plan Group of Offices, CDGK through impugned order
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rejected all objections raised by the respondents such as inadequate utilities and infrastructure, or parking and choking of road deprecation in land value, commercialization policy, environment etc., but withdrew the commercialization on the ground that commercialization of the subject plot would be a "security risk" of a sacred place viz. "Jamat Khana". The petitioners have impugned the order that it has been passed on a ground, not recognized by law, whereas, respondents had challenged the same order by asserting that upholding of commercialization on other ground and rejection of their objections in the impugned order was unlawful. It appears that during pendency of these petitions, petitioner Salim Godil approached Environmental Protection Agency and filed IEE on 29-7-2011 and the EPA gave clearance for the proposed project vide their letter dated 5-11-2011. FACTS OF CONSTITUTIONAL PETITION NO. D-3410 OF 2010 ' Briefly, late Ardeshir Cowasjee and others filed petition bearing No, D-2295 of 2009 against Dr. Zubair and Muhammad All (petitioners in Constitutional Petition No,D-3410 of 2010) challenging the variation of Town Planning conditions in respect of approved plan issued by the respondent No,4 for raising construction of a commercial cum-residential building containing shops and 'flats on the subject property No,II. It was also the case of the petitioners that necessary infrastructure is to be provided prior to the conversion of the subject property, however, the petition was disposed through following consent order:-- "We have heard all the learned counsel. Consequently, this petition is disposed of by consent in the manner that Environmental Protection. Agency, Sindh to hear the application of respondents Nos.1 and 2 vis-a-vis the NOC for construction of their project and decide the same in accordance with law within one month from today after giving due notices to Mr. Ardsher Cowasjee and the respondents Mr. Zubair Ahmed and Mr. Muhammad Ali, K. B. C.A, C.D. G. K, K. E. S. C, .K. W. Et. S. B, S. S. G. C." Since the Environmental Protection Agency after hearing directed filing of EIA vide their letter dated 10-10-2010 instead of IEE Leading to filing of Constitutional Petition No,D-3410 of 2010, wherein, the petitioners Mr. Zubair and Muhammad Ali claimed to be lawful owners of subject property No,II, and asserted that Main Khayaban-e-Rommi on which subject plot No, II is situated was declared commercial pursuant to Resolution No,659 passed by CDGK on 27-6-2005. It is the case of the petitioner that due to commercial status of Khayaban-e-Roomi, it has attracted number of investors and large number of commercial projects such as The Forum, Ashiyana, World Trade Centre and Clifton Centre etc. It is the case of the petitioners that the petitioners applied for commercialization of the subject property No,II on 31-8-2005, public notices accordingly were issued on 25-10-2005 in "Daily Times" and "Daily Jasarat" inviting public objections and after public meeting dated 5-12-2005 CDGK confirmed conversion of the said property from residential to commercial by issuance of NOC on 17-2-2006. The petitioners deposited the commercialization and scrutiny fee on 26-1-2006 whereafter approval and architecture plan was issued by KBCA on 29-6-2007 and No Objection for the Sale and Advertisement of the project was issued on 6-12- 2007. It is asserted that Constitutional Petition No,D-2295 of 2009 was filed against them which was disposed of on 8-6-2010 through a consent order reproduced above and in consequent thereof the petitioners on 18-6-2010 submitted IEE in respect of their proposed building but the EPA on account of some extraneous pressure kept delaying the matter and ultimately through impugned letter directed the petitioners to file Environmental Impact Assessment (EIA) which according to the petitioners was liable to be set aside. SUBMISSIONS IN RESPECT OF CONSTITUTIONAL PETITIONS NOS.D-1272 AND 1970 OF 2010 ' Messrs Abid S. Zuberi and Obaid-ur-Rahman Khan, learned counsel representing Salim Godil in Constitutional Petition No,D-1272 of 2010 and 1970 of 2010 respectively, contended that all the objections raised by the respondents were duly addressed and rejected by this Court in its various judgments. Per counsel, the power and authority of the CDGK for commercialization of the road as
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well as the effects of the Resolution No,659 dated 27-6-2005 whereby CDGK had declared various roads as commercial was upheld by this Court in the case of Nighat Jamal v. CDGK (2010 YLR 2624) and likewise the commercialization of Khayaban-e-Roomi and the construction of high rise building on the said road was upheld by this Court in the case of Ardeshir Cowasiee and others v. Karachi Building Control Authority and others (PLD 2006 Karachi 63) and a Petition for Leave to Appeal against the said judgment was dismissed by the Hon'ble Supreme Court in Constitutional Petition No,729-K of 2005. It is further contended that in consequent to the directions of this Court dated 8-3-2010 in Constitutional Petition No,D-260 of 2010, the petitioner approached the Environmental Protection Agency which after holding necessary inquiry granted Initial Environmental Examination (IEE) on 29-7-2011 to the petitioner. Per counsel, therefore, the withdrawal of the commercialization of the subject plot was totally illegal and on a ground which is not recognized by the law i,e, "security of a sacred place i,e, "Jamat Khana". Counsel while placing reliance on an unreported Order dated 18-8-2009 passed by a Division Bench of this Court in Constitutional Petition No,D-691 of 2008 contended that in the said case commercialization of a plot on a declared commercial road was refused on the ground that it might create law and order situation being adjacent to Imam Bargah and this Court overruled such objection by allowing construction on said commercial plot in accordance with the rules and regulations. Mr. Zuberi contends that the said order is applicable to his case on all fours and, therefore, the impugned order is liable to be set aside. It is further contended that commercialization of a plot adjacent to the plot of petitioner viz. Plot No,F-99, Block-7, KDA Scheme-V, Khayaban-e-Roomi, Clifton, Karachi was upheld by this Court in the case of Mrs. Farida and others v. New Allied Electronics Industries (Pvt.) Ltd. (2009 YLR 1896) and maintained up to the Hon'ble Supreme Court, therefore, the petitioner deserves similar treatment. Mr. Zuberi lastly contended that the petitioner has obtained IEE from Environmental Protection Agency in consequent to the directions of this Court dated 8-3- 2010 in Constitutional Petition No,D-260 of 2010 but according to him the provisions of Act 1997 were not attracted to the case of the petitioner as clauses 3 and 4 of the Environmental Protection Rules, which provides for obtaining of IEE or EIA apply to the projects mentioned in Schedule-I or II and none of the provision in Schedule I or II contain any reference to construction of a building which requires either IEE or EIA, therefore, construction on a declared commercial road does not require either IEE or EIA. Per counsel however, clause-5 of the Regulations empowers the Federal Agency to require from any proponent of a project IEE or EIA. Per counsel since the petitioner has already obtained IEE in line with other high rise building in the vicinity, therefore, the objections are just for the sake of objection and are liable to be rejected and petitioner's plot be declared as commercial for the purposes of construction of a building in accordance with the approved building plan. SUBMISSIONS IN RESPECT OF CONSTITUTIONAL PETITION NO.D-3410 OF 2010 ' Mr. Khawaja Shamsul Islam, learned counsel appearing for Dr. Zubair and Muhammad Ali in Constitutional Petition No,D-3410 of 2010, contended that Ardeshir Cowasjee and others had challenged Resolution No,659 of 27-6-2005 whereby City Council had commercialized various roads including Khayaban-e-Roomi as well as alleged variation of Town Planning Conditions while converting the land use and allowing permission to the petitioner for raising construction by filing Constitutional Petition No,D-2295 of 2009, and knowing well that all the objections so raised were already adjudicated by this Court in various cases, gave up all the objections and got their petition disposed of on 8-6-2010 with the directions to the petitioners to obtain permission from Environmental Protection Agency Sindh before raising construction. Consequently, this Court while disposing of the said petition by consent directed the Agency to hear the application of the petitioner for no objection certificate for the construction of their project and decide the same in accordance with law within 30 days and till receipt of no objection certificate from agency restricted the petitioners from raising construction. Per counsel, due to pressure from various
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quarters the matter was not finalized and ultimately the Agency asked the petitioners to file EIA instead of IEE leaving no option for the petitioner to again approach this Court by filing instant petition. It is contended that in terms of section 12(4) of Act 1997 the respondent/Agency was duty bound to communicate its approval or otherwise within a period of four months from the date of submission of their IEE i,e, 18-6-2010 and on their failure to respond petitioners were entitled to automatic approval under the deeming clause. Mr. Shams contended that the grudge, prejudice and mala fide of the Agency can be gauged from the fact that it had required the proponents of various projects situated adjacent to the project of the petitioner for filing IEE and has asked the petitioner for filing EIA which is discriminatory and violative of principles enshrined in Article 25 of the Constitution of Islamic Republic of Pakistan. It was contended by the counsel that this Court has held in one of its judgment that in cases where the road is commercialized even there is no need to obtain permission for raising commercial construction along with such road. He further contended that the commercial project on Khayaban-e-Roomi such as The Forum, Aashiyana, Clifton Centre, Silk Bank, Habib Bank Limited and The World Trade Centre as well as in the case of Plots Nos.F-96 and F-99 just adjacent to the petitioners' plot the agency has asked for IEE therefore, asking the petitioners to file EIA is totally discriminatory. Per counsel section 12 of the Act 1997 which requires obtaining of IEE or EIA is to be read along with Schedules I and II. It is contended that clause (H) of Schedule-II which provides for EIA is in respect of "Urban Development and Tourism" which is applicable only in cases of land use studies and urban plans for large cities and not in case of small project as of the petitioners which even otherwise is a commercial form of residential project. As to application of clause J of Schedule II, per counsel, it has been involved malafidely. Per counsel, at the most the petitioners can be asked to furnish IEE as in the cases of other projects which petitioner has already filed, therefore, the petitioner be allowed to raise construction in accordance with the permission already granted by the Building Control Authority. In support of his contention counsel has placed reliance on the judgment of Ardeshir Cowaslee v. Karachi Building Control Authoritu (PLD 2006 Karachi 63), (Shehri C.B.E. v. Government of Pakistan IPLD 2007 Karachi 293), Amin v. Navaid Hussain (2008 SCMR 133), Zaheer Ahmed Chatulhru v. Citu District Government Karachi (2006 YLR 2537), Nighat Jamal v. Province of Sindh (2010 YLR 2624), Shamsul Arfin v. Karachi Building Control Authorial (PLD 2007 Karachi 498), Ummatullah v. Province of Sindh (PLD 2010 Karachi 236) and Irian v. Karachi Building Control Authoritu (2005 CLC 694). SUBMISSIONS OF MESSRS NAIM-UR-REHMAN, ABDUR RAHMAN AND KHALID JAWED KHAN ADVOCATES ' It was contended on behalf of petitioners/respondents who claim to be the residents of Clifton and are objecting to the commercial construction that Constitutional Petition No,D-2295 of 2009 whereby Dr. Zubair and Mr. Muhammad Ali were to apply to Environmental Protection Agency was decided on 8-6-2010, therefore, the decision of the Agency dated 1-10-2010 requiring the petitioners to file EIA was within four months, therefore, the contention for automatic approval under the deeming clause is totally misconceived. It was next contended that since the power was exercised under section 12(2)(a) while directing the petitioners to file EIA therein the construction of approval under the deeming clause is totally misplaced. Mr. Abdul Rehman next attacked the maintainability of the Constitutional Petition No,D-3410 of 2010 filed by Dr. Zubair and Mr. Muhammad Ali on the ground that against the impugned letter dated 1-10-2010 requiring the petitioners to file EIA the appropriate alternate remedy in terms of section 21 was available to the petitioners, which the petitioner have failed to avail within 30 days, therefore, the petition itself is liable to be dismissed on this score alone. It was next contended that since The Pakistan in Environmental Protection Agency (Review of IEE and EIA) Regulations were made in the year 2000, therefore, the Act 1997 had no application to the construction raised prior to the year 2000 and therefore, the reference made to the Various buildings constructed on Khayaban-e-Roomi after filing IEE is of no substance as all
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were constructed prior to 2000. Mr. Abdur Rahman further while referring to regulations 3 and 4 contended that a proponent of the project who falls in any of the category listed in Schedule I has to file IEE whereas those proponent of the project who falls in category listed in Schedule II has to file an EIA and notwithstanding regulations 3 and 4 the Agency has power under Regulation 5 even to ask a proponent of a project which does not fall in any of the category listed in Schedules I and II to file an IEE or EIA, therefore, the contention of the petitioners that their project does not fall in either of the referred schedules even if accepted, still the directions of the Agency to file EIA are lawful and unnecessarily called in question. Mr. Abdur Rahman further while referring to entry No, 3 of Clause A Schedule-II contended that such project would involve transmission line of 11 KV and above and a grid station therefore requires EIA. He further referred to Clauses H1 and J2 of Schedule II and contended that all land used in large cities as well as in project which is likely to cause adverse environmental effect needs EIA from Environmental Protection Agency and therefore letter dated 1-10-2010 requiring the petitioners to file EIA is absolutely lawful. Mr. Abdur Rahman lastly contended that filing the petition after lapse of period provided for filing appeal under section 22 of the Act 1997 is not permissible. Reliance has been placed on the judgment of Supreme Court in the case of Muhammad Azhar Khan v. Assistant Commissioner/Collector Toba Tek Singh (2006 SCMR 778) and The Murree Brewer!' Co. Ltd. v. Pakistan, throuqh the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 Supreme Court 279), ' Messrs Khalid Jawed than and Abdur Rahman, learned Advocates mat only defended the impugned order dated 26-4-2010 whereby the EDO had withdrawn the commercial status of the plot but contended that the other pleas raised by the respondent before the EDO such as inadequate utilities, parking, choking of roads, depreciation in land value were unlawfully turned down. ' It was lastly contended that a bench of this Court in Constitution Petition No,D-2460 of 2008 after observing that two different benches have taken a different view regarding approval from Environmental Protection Agency in the cases of Niqhat Jamal v. Province of Sindh and others (2010 YLR 2624) and Shamsul Ar fin and others v. Karachi Building Control Authoritu and others (PLD 2007 Karachi 498) recommended constitution of a larger bench to thrash out the diversion of opinion on the issue, therefore, this matter be also referred to the larger bench. SUBMISSIONS OF MR. MANZOOR AHMED AND MRS. AZRA MUQEEM ADVOCATES FOR CITY DISTRICT GOVERNMENT KARACHI ' It was contended that City Council vide its Resolution No,659 dated 27-6-2005 had declared Khayaban-e-Roomi Road open for change of land use along with three other roads, the Resolution was duty gazette on 18-7-2005 vide Gazette Notification No, DCO/CDGK/413/2005 and the power of the City Government to change the land use as well as Resolution No, 659 dated 27-6-2005 was called in question in various Constitutional Petitions before this Court and a Division of this Court in the case of Nighat Jamal (supra) has upheld the power of City District Govt. Karachi for such change in land use. It was next contended that the petitioners applied for the change of land use on prescribed form and after fulfilling all codal formalities and upon payment of all necessary charges the request was acceded whereafter the petitioners applied for approval of the proposed building plan which was processed accordingly. It was contended that petitioner Salim Godil though had in consequent to the directions obtained permission of Environmental Protection Agency but since this Court had directed the Executive District Officer (EDO) City District Government Karachi to hear the parties and thereafter to pass a speaking order pertaining to commercialization of the subject plot and in pursuance to such directions the EDO CDGK after a public hearing passed a speaking order directing withdrawal of commercialization of the subject plot, solely to eliminate the security risk to a sacred place viz. Jamat Khana and had specifically stated that the order shall apply to this plot alone.
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SUBMISSIONS ON BEHALF OF THE SINDH ENVIRONMENTAL PROTECTION AGENCY ' It was contended that in pursuance of the directions contained in the order passed in Constitution Petition No,D-2295 of 2009 the Agency after hearing out all stakeholders reviewed Initial Environmental Examination (IEE) submitted by the petitioners Dr. Zubair Ahmed and Muhammad Ali in respect of the subject property No,II strictly in accordance with the provisions of Pakistan Environmental…
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