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Petitioner: ARDESHIR COWASJEE and 4 others VS Respondent: CLIFTON CANTONMENT BOARD and JUDGMENT
Court Name: Sindh High Court Judge(s): Nazim Hussain Siddiqui, Kamal Mansur Alam Title:ARDESHIR COWASJEE and 4 others vs CLIFTON CANTONMENT BOARD and
JUDGMENT
Reported As: 1998 MLD 1818 Result: Order accordingly Judgment JUDGMENT NAZIM HUSSAIN SIDDIQUI, J.---This judgment will dispose of High Court Appeal No,42 of 1994 and Constitutional Petition No,D-1524 of 1997, as common questions of law and facts are involved in these matters. 2. Above petition was filed on 11-8-1997. According to the petition, petitioner No,1 Ardeshir Cowasjce has filed a number of public interest cases to protect environment of city and to prevent illegal buildings from being constructed contrary to the development schemes. The petitioners Nos.2,3 and 4 are residing within the vicinity of Plots No,G-7, Block 9, K.D.A. Scheme No,5 admeasuring 6921.66 sq. yards, hereinafter referred to as said plot. The petitioner No,5 is, resident of Phase V of Defence Housing Authority. 3. It is alleged hat respondent No,9. M/s. Shaista Estates (Pvt.) Limited, had filed Constitutional Petition No,D-248 of 1985 in respect of said plot stating therein that they had applied to concerned authority seeking commercialisation of said plot and submitted necessary documents. Their prayer was granted and they deposited a sum of Rs,27,68,664 and Rs,1,38,434 as Commercialisation Charges and Planning Fee respectively. Thereafter, no-objection certificate was issued to them for commercialisation of said plot, vide letter dated 21-4-1994 of Karachi Building Control Authority, Karachi. Subsequently, the operation of aforesaid letter was suspended. They (M/s. Shaist Estates) challenged said order in the petition which was disposed of as follows: "For the reasons to be recorded separately we accept the petition and declare the letter dated 28- 5-1984 (Annexure P/8) for suspensation of commercialization of Plot No,G-7, Block 9, Scheme 5
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Clifton, Karachi issued by respondent No,2, unlawful and of no legal effect and consequently restore the non-objection certificate date 21-4-1984, with no order as to costs." 4. The petitioners have claimed that said conversion was illegal as it was against the mandatory provisions of Articles 40, K.D.A. Order No,5 of 1957, hereinafter referred to as Order No,5 of 1957. 5. It is alleged that said plot is situated at roundabout known as "Dow Talwar", which is a junction whereat 10 roads or 34 traffic lanes converge. It is the case of the petitioners that said plot in the judicial proceedings before High Court, Supreme Court, and also before Governor of Sindh, was shown within the jurisdiction of Karachi Building Control Authority (K.B.C.A.), while, in fact, it was within the limit of respondent No,1, Clifton Cantonment Board (C.C.B.), as per Notification No,207(I)/83, dated 27-2-1983. It is also the case of the petitioners the residents of said area on 12- 1-1987 were granted permission by the then Advocate-General of Sindh to file a Suit for Declaration and Injunction, under section 91, C.P.C., to restrain the respondents No,9 from committing criminal offence of public nuisance within the meaning of section 268, P.P.C. The persons, who had been so authorised filed the Suit No,54 of 1987 from which H.C.A. No,42 of 1994 has arisen. 6. The petitioners on 7-5-1992 came to know that the respondent No,1 (C.C.B.) had permitted to construct a multi-storeyed building on said plot. It is alleged that construction of 150 shops and 130 offices on said plot would cause traffic congestion in addition to nuisance to all persons who happened to be present there for any reason. The petitioners have, claimed that though the H.C.A. No,42 of 1994 was filed on 4-2-1994 but the same has not been decided so far. Construction over said plot was started in February, 1997. The petitioners, therefore, have prayed for following reliefs: (a)Declare that the plot cannot at all be converted from residential to commercial by respondent No,3 without complying with the mandatory provisions of Karachi Development Authority Order No,5 of 1957; (b)declare that none of the respondents Nos.1 to 3 have any authority, power or jurisdiction to convert the plot from residential to commercial or permit the construction of a commercial building on the same; (c)that in the circumstances respondent No,1 cannot issue an approved plan as granted by it (Annexure V/b above); (d)direct respondents Nos.2 and 3 to cancel the illegal conversion of the plot forthwith as being of no legal effect; (e)direct respondents Nos.1, 2 and 3 jointly and severally to remove all building works carried out on the plot; (1) grant permanent injunction against respondents Nos.1, 2 and 3 not to permit conversion of the residential plot for any other use in the future; (g) any other relief this Honourable Court may deem fit. 7. Suit No,54 of 1987 was filed by the two sons of Late A.W. Adamjee, namely Abdul Razzak Adamjee and Abdul Hameed Adamjee for declaration and injunction. A temporary injunction sought by them was denied, as per Order dated 24-1-1994, which has been impugned in High Court Appeal No,42 of 1994. 8. The case of respondent No,1, in brief, Is that commercialisation was done in accordance with the rules and regulations and even now so is being done in the area of 'Khayaban-e-Iqbal'; by the Lessor/ K.D.A. and in pursuance thereof the Clifton Cantonment Board has given approval of multi- storeyed buildings in Blocks 8 and 9 Clifton, as per the applicable rules and regulations. Since the municipal functions, including jurisdiction of Building Control of Blocks 8 and 9 of K.D.A. Scheme 5, were transferred to Clifton Cantonment Board, therefore, the building plans were also submitted to Cantonment Board. As per practice then prevailingly the plans of multi-storeyed buildings were forwarded by Cantonment Board to Building Control Cell established in the Office of D.M.L & C, Karachi Region, Karachi, and after scrutiny the Building Control Cell of D.M.L.& C. Office granted
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approval on 10-6-1992 of exactly the same plan which had already been approved by K.B.C.A./K.D.A. Thereafter, the respondent No,1 issued approved plans on 5-7-1992. It is also the case of respondent No,1 that said respondent vide Regulation No,28 dated 14-11-1992, validated the building plan. 9.The case of respondents Nos. 2 and 3 is that the Scheme No,5 Clifton envisages residential, commercial, as well as other type of plots since beginning and that the changes in the area were allowed because of changed circumstances and for development of the city. Further, it is said that area of Clifton Road has been commercialised in accordance with K.D.A. Policy decision of governing body Resolution No,220 and Administrative Instructions No,57. These respondents have claimed that Policy Decision dated 11-5-1980 enabled K.B.C.A. and K.D.A. to commercialisae as many as 15 different areas of Karachi, including Main Clifton Road on payment of additional charges. According to these respondents, whole of Clifton Road (Khayaban-e-Iqbal) has been declared commercial from Clifton Bridge to Doe Talwar Roundabout. 10.The case of respondent No,9, in brief, is that said plot was purchased by the respondent from its previous owner, who in turn had purchased it from a member of well-known Adamjee family. Its commercialisation was ordered on 21-4-1984. This fact was known to all the petitioners including the petitioner No,1 . The petitioner No,5 Mr. Kunwar Idress, who had remained a high level Federal and Provincial Government Officer, was fully aware of above facts. 11. The respondent has claimed that the laches involved in this matter has not been at all explained by the petitioners. It is also alleged that since 1985 several judicial proceedings were initiated in respect of said plot. Constitutional Petition No,D-248 of 1985 was filed by the respondent, which was allowed and the order of Governor was set aside by a Division Bench of this Court on 6-3-1986. Civil Appeals Nos.8-K and 9-K of 1987 were filed by the Government of Sindh and Karachi Building Control Authority before Supreme Court of Pakistan, challenging said decision. These appeals were disposed of by a consent order of the apex Court, dated 4th March, 1990 whereby the matter was referred to the then learned Governor of Sindh Mr. Fakhruddin G. Ebrahim to decide whether the suspension order passed by his predecessor was valid or not. In pursuance of said directive of Supreme Court, the then learned Governor by order dated 26th May, 1990, categorically held that the order of his predecessor was not warranted and that the 'No-Objection Certificate' granted to respondent No,9 was valid and subsisting. 12. The approved plan for construction of commercial building on said plot is restricted to basement, ground plus five upper floors. The respondent has taken a plea that it could not be treated as 'highrise building'. The respondent has claimed that it is not first commercial building to be constructed on Clifton Road and that the commercialisation of said road was decided in the year 1980. It is alleged that from Clifton Bridge to roundabout of "DOE TALWAR" already the followings commercial buildings have been constructed: (1) Bridge View, (2) Rimpa Constellation, (3) Parsa View, (4) Mehran Excellency, (5) Bridge Apartment, (6) Prince Complex, (7) P.S.O. House. (8) Glass Towers, (9) Clifton Broadway, (10) Chappal Bright Homes, (11) Collumbus Towers, (12) Hamilton Courts, (13) Sindh Medical Centre, (14) Gulf Way Towers, (15) Clif Towers, (16) Al-Habib Arcade, (17) Clifton Pride, (18) Yousuf Grand Square, (19) Mansoor Towers, (20) Saima Continental, (21) Kehkashan Shopping Arcade, (22) Mehran Heights, (23) N.B.P., (24) Uzma Shopping Centre. (25) Dean Arcade, (26) Shaheen Centre, (27) Clifton Centre. 13.Besides above, about 25 buildings have been constructed on Khayabn-e-Roomi, Khayaban-e- Jami and on the left of Three Swords Roundabout. All these buildings were constructed after 1980. 14.It is alleged that respondent No,9 had already received from the public approximately Rs,30 million as advance from the project on said plot and 30% structural work had already been completed, and three storeyes above ground floor were raised on a portion of said plot. Further, it is said that said plot is situated at a distance of 150 yards from Mideast Medical Centre and from
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across the road there exists a very old four-storeyed block of flats owned by the family of late Mr. M.A. Khuhro. It is also the case of the respondent that there is no allegation whatsoever that said construction is not in accordance with approved plan. 15.The case of respondents Nos.10 to 22, in brief, is that the petition has been filed with mala fide intention and is hit by laches, as it was filed after 14 years of commercialisation. They have claimed that vested rights could not be taken away retrospectively. It is alleged that the respondents Nos. 10 to 21 were impleaded as defendants in Suit No,1088 of 1997. Also, it is their case that no stay was granted by Supreme Court, restraining construction over said plot. The petitioners have do sought any relief against them (allottees). No public notice was given by the petitioners informing the prospective allottees for not purchasing said shop/offices etc. 16.At outset, it is pointed out that, in view of proclamation of emergency, dated 28th May, 1998, Mr. Naimur Rehman, learned counsel for petitioners submitted that the pleas for enforcement of fundamental rights conferred by Chapter 1, Part 2 of the Constitution, would not be pressed as said rights stand suspended up to the time emergency is in force. Learned counsel also submitted that despite exclusion of above pleas still the petition is maintainable on the following grounds: (i) Clause (4) of Article 40 of the Order No,5 of 1957 was not in letter and spirit followed by the authority inasmuch as public hearing and notice envisaged in this clause were never given to concerned persons. Said clause (4) is as follows: "Clause 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 give notice to all persons it deems affected." (ii)The Resolution No,220 is not applicable 'as K.D.A. Scheme No,5 was twice notified and gazetted and said resolution was neither gazetted nor notified nor any proof was provided by the Builders that Government of Sindh had approved it. Further, it is argued that said resolution is in contravention of Articles 11, 15, 16 and 40 of Order No,5 of 1957 and it purports to modify Regulation No,1972, which was duly gazetted vide Sindh Government Gazette, dated 28th December, 1972. (iii)The then learned Governor of Sindh Mr. Fakhruddin G. Ibrahim's Order, dated 26-5-1990 was not proper and he ought not to have heard matter referred by Supreme Court, as earlier he had appeared as Advocate for the Builders. The proceedings before Supreme Court and said Governor were held on the basis that said plot was within control and jurisdiction of K.B.C.A. rather than C.C.B., as such, the real facts were never dilated upon in their true perspective. (iv)The highrise and multi-storeyed buildings in areas of Cantonment Board and Defence Housing Authority etc. without adequate infrastructure have caused overburdening and collapse of civic services, as multi-storeyed building are likely to create inconvenience, infringement of air and light, nuisance, pressure on civic amenities and environmental pollution. (v)With reference to Appeal No,42 of 1994, it was argued that interim injunction ought to have been granted as prima facie, case was established by grant of permission on 12-1-1997 under section 91 of Civil Procedure Code, by the then Advocate-General of Sindh for restraining public nuisance. 17.As against above, Mr: Iqbal Memon, learned counsel for K.B.C.A. argued that said plot in pursuance of Government Policy was rightly converted from residential to commercial and all legal formalities in that regard were followed. He supported the case of the respondent No,9. 18.Mr. Abdul Hafeez Pirzada, learned counsel for respondent No,9 contended that the objections of intervenors/residents of said area were overruled in Constitutional Petition No,D-248 of 1985. He submitted that Civil Appeals Nos.8- and 9-K of 1987 were taken to Supreme Court from Judgment of High Court by Government of Sindh and K.D.A./K.B.C.A. in which the intervenors were parties but the intervenors neither challenged the judgment of this Court nor the conversion. He argued that for about 7/8 years neither the petitioners nor any other intevenors instituted any judicial
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proceedings to challenge the order of Governor. He submitted that on the basis of order of Governor, the respondent No,9 proceeded to have its plans approved and in that connection enormous cost was incurred. Explaining this point, he submitted that initially these plans were approved by K.D.A./K.B.C.A. and after transfer of jurisdiction by the Clifton Cantonment Board. He submitted that construction activity was started in 1994 when a site office was built on the plot and thereafter, other formalities were completed. he maintained that permission was given to the respondent No,9 to advertise for looking of prospective purchasers of offices and shops in the Project on 22nd February, 1997 and in response to the advertisement hundreds of persons have made bookings and made payments over Rs,60 million and these persons have acquired vested third party interests. 19.Before dealing with the contentions of learned counsel for the petitioners, it is pertinent to point out that Order No,5 of 1957 was issued by the President of Pakistan, under clause (2) of Article 211 of the then Constitution with the object to make provisions for development and improvement of certain areas in Karachi Division by taking various steps in that regard. Karachi Development Authority was established for the purpose to acquire and hold property for said purpose. Articles 37, 38 and 39 of Order No,5 of 1957 deal with development scheme, housing scheme, and town expansion scheme respectively. Article 40 speaks about Zonal Plan Scheme. Clause (4) of Articles 40 is to be looked into with reference to the other articles, particularly mentioned just above. The idea of city planning in itself embodies orderly arrangement of residential, commercial, and industrial areas that there may be cohesion between them, looking to the maximum requirements of the people. Zonal Planning shows the purpose for which any land in any area shall be primarily used and under this Zonal Planning Areas are reserved for residential purposes, commercial purposes, industrial purpose, agricultural purpose and open spaces etc. 20.Following as above, if any person desires to use land for any purpose other than laid down in the Zonal Planning Scheme he can apply to the authority for permission to do so and for that purpose the authority may order a public hearing and give notice to all persons it deems affected. The plea of the petitioners is that respondent No,9 was obliged by the authority without fulfilling conditions as laid down in clause (4) of Article 40. 21.It is pertinent to point out that in Karachi Development Authority Zoning Regulations, 1972, para. 4(f), it is provided that plots allotted for residential, commercial, industrial, amenities and multi- storied building purpose shall be exclusively used for the purpose, they are meant, unless conversion of use is allowed by K.D.A. Thus, it would be seem that it is permissible under law to make conversion, provided it is for the benefit of people. 22.Both K.D.A. and K.B.C.A. have taken stand that conversion was done looking to the requirements of the area and on completion of all formalities in that regard. There is no evidence worth mentioning available on record to show that legal formalities, as required under clause (4) of Article 40, were not complied with. Under Article 129 of Qanun-e-Shahadar Order, 1984 the legal presumption is that "judicial and official acts have been regularly performed". 23.Mr. Abdul Hafeez Pirzada, learned counsel for respondent No,9 argued that Article 40 does not provide any penalty or consequence for failure to issue a notice. Therefore, under no circumstances, the requirement of notices to the neighbours, could be treated as mandatory. He also submitted that failure to serve notice, if at all it was so, is immaterial and an inconsequential irregularity According to his, the lapse if any was fully rectified and redressed when so-called concerned persons were given a full hearing not only in C.P. No,D-248 of 1985 and Supreme Court Appeals Nos.8-K and 9-K of 1987, but also before Governor of Sindh on remand of case to him by Supreme Court. 24.Mr. Naimur Rehman, however, rebutting above plea, contended that clause (4) of Article 40 is mandatory as this power is given to exercise discretion for benefit of residents of the area and for
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this purpose placed reliance upon the cases reported as (1) M/s. Saleem Sons Limited v. The 'Ind Labour Court, Karachi, PLD 1973 Karachi page 1, (2) Muhammad Shafi v. Chief Secretary and others PLD 1973 Azad Jammu and Kashmir 27 and (3) Abdul Rahim and 2 others v. M/s. United Bank Limited of Pakistan PLD 1997 Kar. 62. 25.In M/s. Saleem Sons' case, it was held that Standing Order No,18 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was mandatory. Further, it was held that when statute creates new rights and obligations and prescribes the mode of its enjoyment or enforcement such provisions are considered mandatory. In Muhammad Shaft's case, it was observed that it is not always correct to say that where the word "may" has been used, the statute is only permissive or directory. The question as to whether a statute is mandatory or directory depends upon intent of the Legislature and not upon the language in which the intent is clothed. In Abdul Rahim's case, it was held that it is now well-settled that mere used of word "shall" will not make a particular provision mandatory in nature. In fact, the two words "shall" and "may" have been judicially recognized to be interchangeable. 26.Article 52-A of the Order No,5 of 1957 deals with plots reserved for road, hospitals, schools, colleges, libraries, playground, gardens, parks, community centres, mosques. graveyards, or such other purposes. For the purpose of conversion of such plot to any other purpose it is provided that the Commissioner shall invite objections from General Public through a notice published in one English and a Vernicular leading local daily newspaper. Now no amenity plot reserved for the purpose mentioned in clause (1) of Article 52-A, shall be converted to or utilised for any other purpose as per Sindh Ordinance No,II/98). It is significant to note that in clause (4) of Article 40 the word "may" and in Article 52-A the word "shall" have been used. The words in common use are to be given their natural, plain, ordinary and commonly understood meaning, unless the statute requires otherwise. As a rule the words of a statute are not to be given "forced, strained or subtle meaning". The different between Articles 40 and 52-A is clear. The former is in respect of the plots of individual, while the latter is for amenity plots. It is true that under certain circumstances the word "may" and "shall" are interchangeable, but this depends upon the Legislature's intent to be gathered from the statute itself. We are of the view that the word "may" used in clause (4) of Article 40, under the circumstances, cannot be treated as "Shall". 27.Learned counsel for the petitioners contended that Resolution No,220 was without any legal significance. He argues that it is not clear from it that under which provision of law, it was adopted and that it was neither gazetted nor notified, as such, it had no legal sanctity behind it. Pursuance to said resolution, the commercialisation of various plots in various schemes including commercialisation of plots on main road Clifton was permitted. The seems to have been done under the President Order No,5 of 1957 and. Zoning Regulations, 1972 (Scheme No,5). Consequent upon permission of said commercialisations so many multi-storeyed buildings in different schemes were constructed, including the Scheme No,5, whereas argued by Mr. Pirzada more than 50 such buildings have already been constructed. Though Mr. Naimur Rehman, learned counsel for the petitioners has challenged validity of this resolution, but we do not find any cogent reason to strike it down. The effect of granting such prayer besides creating chaos, would be nothing, but to declare that those buildings were constructed illegally. As regards the plea that said resolution was passed by K.D.A. in contravention of Articles 11, 15, 16 and 40, it is noted that Articles 11, 15, 16 and 40 deal with power to sanction, reject or revise scheme, power of the authority to make regulations, rules and regulations to be published in the official Gazettee, and Zonal Plan Scheme, respectively. No law or Rules was cited to show that said resolution was to be gazetted or notified compulsorily nor in any manner it has been explained that as to how it was in contravention of Articles 11, 15, 16 and 40 nor it had the effect to modify Regulation No,1972. In fact, the resolution was adopted for development and improvement of the area within the scope of Presidential Order No,5 of 1957 by
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the persons who were legally authorised to do so. Under Article 3 of Order No,5 of 1957 the authority was established, which is a body corporate. Article 5 speaks about Governing Body, which shall consist of a Chairman, a Director-General and five other members to be appointed by the Provincial Government. The Resolution No,220 was passed by the Governing Body and its validity and propriety was never challenged specifically. Even now it is not shown that said governing body exceeded its power or committed any illegality. 28.As regards the Governor's Order dated 26-5-1990 Mr. Naimur Rehman cited (1) Metropolitan Properties Co. (F.G.C.) Limited v. Lannon and others (1968) 3 All ER 304, (2) Haji Muhammad Saifullah v. Federation of Pakistan PO 1989 SC 690, and (3) R.v. Gough (1993) 2. All ER 724, to contend that if there was any allegation of bias impliedly or directly it was not proper for the Governor to have heard the matter as in earlier proceedings regarding this very matter he represented the respondent No,9 before Supreme Court. It has been observed by Supreme Court in Haji Muhammad Saifullah's case that it is a fundamental principle that in the absence of statutory authority or consensual agreement or the operation of necessity no man can be…
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