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Petitioner: NIGHAT JAMAL VS Respondent: PROVINCE OF SINDH and others
Court Name: Sindh High Court Judge(s): Sajjad Ali Shah, Sarmad Jalal Osmany Title: NIGHAT JAMAL vs PROVINCE OF SINDH and others Case No.: C.P. No, 1664 of 2009 Date of Judgment:2010-03-04 Reported As: 2010 YLR 2624 Result: Order accordingly
JUDGMENT
JUDGMENT SAJJAD ALI SHAH, J.---The petitioner through this petition has challenged the conversion of a residential plot into commercial and construction of a multistorey residential-cum-commercial building thereon. ' Briefly, the petitioner who claims to be the owner of House No,122, Block-III, Bahadur Yar Jang Cooperative Housing Society, Karachi situated in a pure residential area states that in the month of October, 2008, the respondents started excavation on Plot No,111, admeasuring about 1023 square yards, adjoining the plot of the petitioner by establishing its Head Office with the intention to raise a multistorey residential-cum-commercial building on a residential plot. The petitioner at that particular time was out of country and on her return came to know that the respondents Nos.9 and 10 have illegally obtained conversion of land use in respect of their aforesaid plot without following proper procedure by taking advantage of Resolution No,659 dated 27-6-2005 whereby City District Council has unlawfully permitted change of land use on 4 roads including Alamgir Road where the subject property is situated. Hence this petition with the following prayers:--- (a) Issue writ declare that the City Council Resolution No,659 dated 27-5-2005, by which the respondents Nos.2 & 3 reportedly gave permission for conversion of use of Plot No,111, Block No,3, Bahadarabad, Karachi, as contained in letter of respondent No,3 dated 5-7-2007, is patently illegal, mala fide, based on dishonesty and fraud, besides the entire conversion is without any proper jurisdiction and authority, as well as in gross violation of Karachi Town Planning and Building Regulations, 2002, 2003, 2004, 2005, 2006 as well as the fundamental rights of the petitioners, hence the same is nothing but a Nullity in the eyes of law, besides being ultra vires and void.
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(b) Issue writ declare that the construction plan accorded by the Respondent No,4 vide its letter dated 23-9-2008 for construction of a high rise commercial building consisting of about 15 floors, is also patently illegal and in gross violation of the Karachi Building Control Authority Ordinance, 1979, as well as the Karachi Town Planning and Building Regulations, 2002, 2003, 2004, 2005, 2006 as well as the fundamental rights of the petitioners, hence the same is nothing but a mullity in the eyes of law, beside being ultra vires and void. (c) Consequently, this Hon'ble Court may further be pleased to order for cancellation/recalling/ revoking of the NOC for conversion dated 5-7-2007 issued by respondent No, 3 and approval of construction plan dated 23-9-2008 accorded by the respondent No,4. (d) Issue writ declare that the construction being raised, as well as the booking/selling out of the shops, show rooms and flats in the proposed high rise 15 floor building of respondents Nos. 9 and 10 are in gross violation of the Environmental Protection Act, 1997, hence the respondent No,5 shall be directed to take appropriate legal action against the respondents Nos. 9 and 10 according to law. (e) Direction be issued to the official respondents Nos. 1 to 8 to cancel the lease of Plot No,111, Bahadurabad, Karachi, due to gross violation of the terms and conditions of the lease deed, whereafter the same plot should be auctioned by the respondents Nos.6 and 7 in accordance with law with the specific undertaking from the proposed buyer not to commit any violation of the lease. (f) Permanently restrain the respondents Nos. 9 and 10 or any person or persons for, under or on their behalf including (without limitation) its servants, employees, agents, attorneys / partners/ Directors or officers from allowing, raising, continuing or completing any construction on Plot No,111, Bahadurabad, Karachi (including without limitation, the building presently under construction) that is in violation of or contrary to the statutory and regulatory provisions or is in violation or in derogation of the petitioners' right. (g) Permanently restrain the respondent No,4 or any person or persons acting for, under or on its Behalf including (without limitation) its servants, employees, agents, attorneys or officers from applying for, pursuing or seeking to compound or seeking or obtaining any similar relief in respect of any construction on the said Plot No,111, Bahadurabad, Karachi (including without limitation, the building presently under construction) that is in violation of or contrary to the statutory or regulatory provisions or the rights of the petitioners; (h) Issue a mandatory injunction against the respondents, specially the official respondents Nos.1 to 8, directing them to demolish any construction on the said Plot No,111, Bahadurabad, Karachi, that is in violation of or contrary to the statutory and regulatory provisions or the rights of the petitioner and failing that to authorize any officer of this Court and direct the respondent No,4 to carry out demolition of any such construction in any manner as deemed appropriate by this Hon'ble Court. (i) Permanently restrain the respondents Nos. 9 and 10 or any person or persons acting for, under or on their behalf including (without limitation) its servants, employees, agents/ partners/ directors, attorneys or officers from selling or attempting to sell, allotting, leasing, assigning or in any manner whatsoever dealing in or disposing off or creating any third person/parties interest whatsoever in respect of any construction on the said Plot No,111, Bahadurabad, Karachi '(including without limitation, the building presently under construction) or any party thereof that is in violation of or contrary to the statutory or regulatory provisions or from accepting any money from the public in respect of the foregoing. (j) Issue writ declare that the respondents Nos. 9 and 10's Building Plan or any other plans or drawings purportedly approved for the said Plot No,111, or any other approval, permission, consent, sanction, recommendation or relaxation whatsoever granted, to be granted or purported to be granted in respect of constructing a multi-cum-commercial building on the said Plot No,111, or allowing or purporting to allow the said Plot to be used for purposes other than the construction of a Ground plus one residential bungalow is void, illegal and of no lawful effect.
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(k) Issue writ declare that the respondent No,2 and its City Council has no power to change the use of the plot and so also convert the residential plot into commercial. Furthermore, has no power to interfere in the statutory duties of C.D.G.K. (KDA Wing) and Karachi Building Control Authority. (l) Issue writ declare that the approval of change of use/ commercialization of Plot No,111, Bahadurabad, Karachi is illegal, void ab initio, without jurisdiction, unconstitutional and is liable to be set aside. (m) Permanent injunction directing respondents Nos. 1 to 8 not to issue any NOC for providing any amenities i,e, electricity, gas and water to the respondents Nos. 8 and 9 on the suit plot No,111, Bahadurabad, Karachi. (n) Permanent injunction directing the respondents Nos. 1 to 8 strictly adhere to the traffic rules and bye laws in respect of suit property. Without prejudice to the foregoing, in addition to and/or in the alternative. (o) Pass the order against the respondents Nos. 9 and 10 exclusively and direct the respondents Nos. 1 to 8 to attach the illegal construction and demolish the illegal structure thereon. (p) grant costs of the proceedings. Mr. Khawaja Shamsul Islam learned Counsel appearing for the petitioner has contended that the City District Council B had no power to change the use of a residential plot to commercial and therefore, not only Tajviz No, 3 dated 12-2-2004 whereby commercial construction on 11 roads was allowed by the City District Council but the Resolution 659 dated 2-6-2005 whereby in line of said Tajviz change of land use on four more roads including the one on which the respondents Nos. 9 and 10 are raising construction was allowed are totally illegal, void and of no consequence. It was further contended that since Sindh Local Government Ordinance, 2001 (hereinafter referred to as "the Ordinance 2001") from which the City District Government of City District Council derives power does not permit change of land use, therefore, the provisions of commercializing provided in Bye Laws 2003 which are framed under section 192 of the Sindh Local Government Ordinance are ultra vires and therefore, entire commercialization in consequence of the bye-laws of 2003 is void ab initio and is liable to be declared as such. Per learned counsel, the petitioner before such commercialization was not put to proper prior notice enabling her to object and oppose such commercialization which has not only substantially damaged the property of the petitioner but has made it inhabitable for residential purposes. Learned counsel by placing reliance on Regulations 18-4.2 to 18-4.2.7 of 2002 has contended that the procedure provided for conversion has not been followed so far as approval of MP&ECD nor the so-called commercialization was in consonance with Regulation 18-5,2 which requires conversion of residential plots into commercial by via a uniform commercialization policy formulated by Master Plan and Environmental Control Department with the approval of Government by notifying it in the official Gazette. It was next contended that the decision of the respondents to vary Town Planning by allowing the construction of a commercial building on a residential plot has caused disturbance of Easementary Rights such as privacy, light and air and has further violated the Fundamental Rights of the petitioner guaranteed under Article 9, 14, 23, 24 and 25 of the Constitution of the Islamic Republic of Pakistan and therefore, cannot be acted upon. Further that a ramp has been constructed on compulsory Open Space and such violation is not compoundable and even if the entire process of Commercialization is held valid still the ramp is liable to be demolished. ' It was lastly contended that the respondents by raising construction without obtaining permission from the Environmental Protection Agency have further violated section 12 of the Environmental Protection Act. In support of his contentions learned counsel has placed reliance on the following judgments of this Court as well as of the Apex Court:- (1) 1990 CLC 83 (Mst. Sardar Begum Faruqui and 6 others versus Rashida Khatoon and 2 others).
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(2) PLD 1992 Lahore 462 (National Industrial Cooperative Credit Corporation Limited and another v. Province of Punjab/Government of Punjab). (3) PLD 1994 SC 512 (Abdul Razak v. Karachi Building Control Authority). (4) PLD 1995 Supreme Court 530 (Zahida Akhtar v. Government of Punjab). (5) 1999 SCMR 2883 (Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority). (6) 2006 YLR 2537 (Zaheer Ahmed Chaudhry and 9 others v. City District Government, Karachi). (7) PLD 2007 Supreme Court 472 (Jawad Mir Muhammad and others v. Haroon Mirza and others). ' On the other hand Mr. Sardar Shehbaz Ali Khan Khosa appearing for respondents Nos.9 and 10 viz owner of Plot No,111 and Builder respectively has contended that City District Council vide Resolution 659 dated 27-06-2005 has made addition in Tajviz No,3 (whereby change of land use was permitted on 11 roads) by declaring change of land use on four other roads viz, Khayaban-e-Saadi Road, Khayaban-e-Roomi Road, Nishter Road and Alamgir Road and such Resolution was duly notified in the Official Gazette dated 6-10-2005. The respondents taking benefit of such commercialization applied for change of land use of their plot from residential (shops cum- offices-cum-flats), Per learned counsel to start with, objections were invited by the CDGK from the public at large by publicizing the respondent No,9's. Application seeking permission for change of land use in Daily "Times" and "Jassarat" both dated 18-12-2006 and since no objection for such conversion were received by the CDGK, therefore, the respondent No,9 proceeded with the process paid a sum of Rs.30,69,000 to the Bahadur Yar Jang Cooperative Housing Society Limited as Commercialization Fee and upon payment of such fee the Society, vide their letter dated 3-3-2007, recommended the case of the respondent No,9 along with proposed commercialization plan to the Master Plan Group of Officers. The respondent No,9, thereafter paid a sum of Rs.10,23,000 to Karachi Cooperative Housing Society Union Limited who also accorded their approval for such change and recommended commercialization of the said plot vide their letter dated 10-4-2007. Thereafter the Union Council, Civic Centre, Gulshan-eIqbal Town also accorded their approval for such commercialization vide their letter dated 11-4-2007 and conveyed the same to Master Plan Group Offices, C.D.G.K. Ultimately Master Plan Group Offices intimated the respondent No,9 vide their letter dated 4-5-2007 that the process of commercialization has been completed and the respondent No,9 was directed to pay a sum of Rs.81,84,000 as conversion fee and a further sum of Rs.1,02,300 as TPS fee which was duly paid by the respondent No,9 on 3-7-2007 and ultimately permission for such commercialization was accorded by City District Government Karachi Master Plan Group of Offices on 5-7-2007. Based on such permission Government of Pakistan, Ministry of Housing & Works also accorded their no objection for commercialization of a residential plot vide its letter, dated 6-10-2007 upon payment of usual fee. The respondent No,9 thereafter submitted its proposed commercial building plan through Bahadur Yar Jang Cooperative Housing Society which was forwarded to the Karachi Cooperative Housing Societies Union Limited upon payment of Rs.9,50,700. The respondent No,9 further paid a sum of Rs .5,11,500 to Karachi Cooperative Housing Societies Union Limited who upon payment of Rs.17,49,716 accorded architectural concept approval vide their letter dated 6-2-2008 for ground plus 13. The KBCA further vide their letter dated 22-3- 2008 accorded their no objection for and advertising the Show Rooms and Residential Flats to be constructed on the subject plot in the name and style of "The City Tower" and ultimately KBCA vide letter dated 23-9-2008 approved the building plan with the permission to carry on construction. Learned counsel has further placed on record sale publicity of the project in daily Jang, dated 19- 4-2008, 20-4-2008, 23-4-2008, 26-4-2008, 27-4-2008, Daily News dated 19-4-2008, 23-4-2008, 20- 4-2008, Daily Dawn dated 20-4-2008, daily Awam dated 19-4-2008, 23-4-2008, 27-4-2008, Daily Kawish dated 4-5-2008 in order to urge that the construction of the project was duly publicized and the petitioner had due notice and was fully aware and at present construction up to five floors has been raised, therefore, this petition suffers from laches.
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' As to the powers of the City District Government to convert the land use Mr. Khosa as well as Mr. Manzoor Ahmed for the City District Government Karachi have contended that City District Government has been established through a mandate as provided under Article 140-A of the Constitution of the Islamic Republic of Pakistan, 1973 which requires that each province shall establish a Local Government System and devolve political, administrative and financial responsibility and authority to the selected representatives of the Local Government and section 3 of the Sindh Local Government Ordinance by which the Local Government is to be governed provided that the provisions of Ordinance 2001 shall have effect notwithstanding anything contained in any other law for the time being in force. Per learned counsel subsection (xvi) of section 2 of the Ordinance 2001 defines Local Government which includes a District Government or a City Government and Zila council. It was next contended that section 40 of the Ordinance, 2001 provides Functions and Powers of Zila Council, of a City District and clause (a) whereof permits classification and reclassification of land use. It was next contended that section 192 of Ordinance 2001 empowers Zila Council, Taluka Council, Town Council and Union Council to make bye-laws within the ambit of their responsibilities to carry out the purposes of Ordinance 2001 and consequently District Council of the City District Government have framed bye-laws of 2003 envisaging change of land use and Rule 3 whereof prescribes a procedure to be adopted before reclassification of land use. Rule 9 further envisages constitution of a Committee comprising of seven members to be elected by the City District Council and the Executive District Officer Master Plan would be the Secretary of such council, Rule 9.3 empowers the Committee to propose change of land use on any place or road in accordance with rules. According to the learned counsel such Committee in a meeting held on 12-4-2005 had recommended the commercialization of additional four roads including the road on which the plot in question is situated and thereafter City District Council vide their Resolution No,659 dated 17-6-2005 approved its commercialization and thereafter such change was notified in the Sindh Government Gazette on 6-10-2005. Mr. Manzoor Ahmed while referring to various notifications and Resolutions has contended that previously such powers were exercised by erstwhile Karachi Development Authority. ' Mr. Haider Shaikh learned counsel appearing for the KBCA has adopted the arguments of the learned Counsel for the respondents and in addition thereto has stated that the plot in question was commercialized and permission for construction/sale was accorded after fulfilment of all formalities. It was therefore, jointly prayed that the petition be (3) dismissed and the interim order be vacated. ' We have heard learned Counsel for the respective parties and perused the record and the case- law cited at bar. ' The first question which requires determination is as to whether commercialization can be allowed by CDGK of a plot or an area reserved for residential purposes in Zonal Plans. The scrutiny of the contentions/of the respective parties in the light of previous history of such conversion reveals that previously commercialization of a plot or an area reserved for residential purposes in a zonal plan was allowed by the Karachi Development Authority by exercising powers vested in it sunder Article 40 of Karachi Development Authority Order, 1957 (hereinafter referred to as "Order 1957") which provided as follows: 40. Zonal Plan Scheme. ---(1) The Authority may, from time to time in regards to any area wholly within or wholly without or partly within and partly without the City, make Zonal Plans, showing the purposes for which any land in any area shall be primarily used; such plans may indicate any area reserved for residential purposes, commercial purposes, industrial purposes, agricultural purposes, open spaces, height, coverage, type, density, spacing and any other purpose, which the Authority may consider necessary.
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(2) The procedure laid down in Article 36 for proposed deferred street scheme shall, so far as applicable, apply to plans under clause (1). (3) An order of the Central Government sanctioning the Zonal Plan Scheme shall be notified in the official Gazette and thereafter it shall be unlawful for any person to use or cause to be used any land for any purpose other than that laid down in the Zonal Plan Scheme unless he has been permitted to do so under sub-Article (4). (4) If any person desires to use any land for any purpose other than that laid down in the Zonal Plan Scheme notified under clause (3), he may apply to the Authority for permission to do so, and the Authority may order a public hearing and given, notice to all persons it deems affected. (5) If the Authority refuses premises to any person, such person may within thirty days of the Authority's refusal, move the Central Government for a revision of the case. (6) The decision of the Central Government on any such revision shall be final. A perusal of the above reproduced Article reflects that sub-Article (4) had provided an exception to sub-Article (3) which prevented change of land use for the purposes other than laid down in the Zonal Plan Scheme by allowing such conversion by an order of authority after a public hearing and notice to all affected persons. It appears that the authority while taking note of the fact that residential plots were being misused as commercial on various roads and in various residential Schemes while exercising powers under this very sub-Article (4) allowed commercialization of residential plots on many roads. The record provided by Mr. Manzoor Ahmed of CDGK reflects that on 20-5-1975 the governing body of the Karachi Development Authority accorded its approval for commercial of residential plots on Tariq Road, Allama Iqbal Road, PECHS Road and Drigh Road and thereafter such commercialization of residential area expanded to various schemes and roads of Karachi. The Authority in 1978 while exercising powers vested in it under Article 15 of the Order 1957 even framed Regulations for the Commercialization of Residential plots facing Main Roads known as "Regulation for Commercialization of Residential plots facing Main Drigh Road (Shahrah-e- Faisal) from Aisha Bawany Academy to Malir Bridge". Though the commercialization of a plot or an area reserved for residential purposes in a zonal plan throughout remained within the domain of KDA but Regulations of Planning, construction, control and demolition of building in the year 1979 was entrusted upon the "Authority" appointed by the Government of Sindh under section 4 of "The Sindh Building Control Ordinance, 1979" (hereinafter referred to as "Ordinance 1979") and the Regulations framed by the Authority under section 21-A of the Ordinance, 1979. It appears that the Authority for the first time while exercising powers under section 21-A framed Regulations which were known as Karachi Building and Town Planning Regulations, 1979 and thereafter these Regulations were superseded by the Karachi Building and Town Planning Regulations, 2002 by making a provision for the continuation of the acts initiated under Regulations 1979. The process of commercialization undertaken by the KDA throughout remained a subject of dispute before this Court as well as the Supreme Court and the Apex Court in the case of Jawad Mir Muhammadi v. Farooq Mirza (PLD 2007 Supreme Court 472) has concluded that a residential plot can be converted into a commercial-cum-residential in accordance with the provisions of Karachi Development E Authority order, Ordinance and the Regulations as there is no specific bar on such conversion in all the said laws/ regulations. The apex Court in the said case after examining its earlier pronouncements in the case of Abdul Razak v. Karachi Building Control Authority (PLD 1994 SC 512) Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423 and Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (1999 SCMR 2883) has drawn following inferences or deductions from the said judgments. The relevant portion of the judgment reads as follows: (i) that plot designated as an amenity plot and reserved for a public benefit/facility such as hospital, School, College, Library, Park, playground, community centre, etc., the nature or use
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thereof can never be converted for residential or commercial use; (ii) that a residential plot can be converted into a commercial or commercial-cum-residential in accordance with the provisions of KDA Order, Ordinance and the Regulations as there is no specific bar of such conversion in all the said laws/regulations; (italic added). (iii) that there is no impediment in the construction of high rise building on a plot after change/conversion of its use from residential to commercial or residential-cumcommercial provided that the provisions relating to the conversion of plot and commercialization contained in the laws/regulations referred to hereinabove are complied with and the concerned authorities undertake to provide new infrastructure for provision of enhanced water supply, electricity, gas, provide better sewerage system, roads and ensure enjoyment of peaceful life to the residents of the locality; (iv) that constructions of a high rise building not strictly in accordance with the provisions of law and suffering from irregularities can be regularized by compounding the irregularities and payment of composite fee provided that there is no violation of the…
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