' The petitioners, who are residents of Gulistan-e-Jauhar, appear to be aggrieved by the conversion of Plot No,SB-1, Survey No,1, Block 2 "the Plot" from an amenity plot, designated for construction of a mosque and clinic, into a commercial plot. Since all the learned counsel for the parties were present, we decided, by their consent, to finally hear and dispose of this petition.
2. The fact that the Plot was initially designated for the above purposes, have not been disputed. Mr. Manzoor Ahmed, learned counsel for respondent No,2, emphatically argued that no conversion of the Plot has taken place and, in fact, an area for construction of a mosque/clinic has been provided at a different site in the same vicinity. He contended that Article 51 of the KDA Order allows alteration of an improvement scheme.
3. Mr. Anwar Ali Shah, learned counsel for respondents Nos.3 and 4, stated that the said respondents acted under the directions of respondent No,2 and, therefore, construction of a commercial complex on the said plot was allowed.
4. Mr. Muhammad Anwar Tariq, learned counsel for respondents Nos. 5 and 6, argued that a bulk area of 12 acres of land was allocated to one Mst. Nargis Mistry, predecessor-in-interest of the respondents Nos. 5 and 6 and a plot for construction of a mosque has already been designated in the aforesaid bulk area. Therefore, construction of a commercial complex on the particular plot in question should not be objectionable. He also supported Mr. Manzoor Ahmed's contention relating to Article 51 of the KDA Order and relied upon the pronouncement of the Hon'ble Supreme Court in the case of Fazal Din v. Lahore Improvement Trust (PLD 1969 SC 223).
5. In the above case, certain observations had been made by their Lordships to the effect that an approved town improvement scheme could always be altered subject to prescribed conditions.
The observations in the above case, however, do not apply to the instant case where the provisions of Article 52-A of the KDA Order, 1957 are applicable. Article 52-A of the Order originally read as follows:- "52-A. (1) The Authority shall immediately after any housing scheme is sanctioned by, or altered with approval of, Government, submit to the Commissioner the details including the survey numbers, area and location of each plot reserved for roads, schools, colleges, libraries, playgrounds, gardens, parks community centres, mosques, graveyards or such other purpose and the Commissioner shall notify such details in the official Gazette.
(2) The Authority of the Housing Society may at any time prior to utilization of any plot reserved for the purpose mentioned in subsection (1), apply to the Commissioner for conversion of such plot to any other purpose.
(3) The Commissioner shall, on receipt of an application under subsection (2), invite objections from the general public through a notice published in one English and a vernacular leading local daily newspaper and the objections, if any, shall be submitted to the Commissioner within 30 days from the date of the publication of the notice.
(4) The Commissioner shall, after considering the objections received under subsection (3) and hearing such persons as he may consider necessary forward his recommendations along with the application and other connected papers to Government for orders."
6. Indeed, respondents have been unable to show whether public objections were ever invited.
Moreover, while initially, sub-Articles (2), (3) and (4) placed strict statutory fetters upon conversion of amenity plots mentioned in sub-Article (1) inter alia providing that conversion could only be allowed after public notice, through KDA (Sindh Amendment) Act, 1994, sub-Articles (2), (3) and (4) of Article 52A of the KDA Order were repealed and a new sub-Article (2) was inserted in the following words: "No amenity plot reserved for the purpose mentioned in clause (1) shall be converted to or utilized for any other purpose."
7. It may be observed that since the 1994 amendment, the bar on conversion has become absolute and, therefore, the case relied upon by Mr. Muhammad Anwar Tariq is clearly distinguishable.
8. Moreover, we may refer to a much recent decision of the Hon'ble Supreme Court in Abdul Razzak v. Karachi Building Control. Authority (PLD 1994 SC 512) wherein their Lordships, while interpreting the provisions of the KDA Order, clearly held that an amenity plot could not be altered for any other purpose.
9. Mr. Junaid Ghaffar, learned counsel for the petitioners, has also referred to a recent decision of this Court dated 24-12-2003, in C.P. No,1472 of 2003 (Syed Mazhar All Gilani v. City District Government Karachi and others) to which one of us (Sabihuddin Ahmed, C.J.) was a party, wherein we categorically reiterated that the amendment in the law had overtaken any controversy and conversion of an amenity plot for any other purpose could neither be made through amendment of zonal plan nor by grant of specific permission.
10. Mr. Muhammad Anwar Tariq further argued that the lease executed by the KDA in favour of the respondent No,6 expressly referred to the plot to be used for "commercial purposes' and, therefore, the D petitioners could not object to it being used as such. Our short answer is that the petitioners were not a party to such lease and they could not be estopped from enforcing their interests or those of the public-at-large. Moreover, no estoppel could be pleaded against express requirements of E law. At the most if the respondent No,6 was required to pay higher F charges by way of cost of a commercial plot, he may claim the difference, if any, in accordance with law.
11. We also find no force in Mr. Manzoor Ahmed's arguments as to relocation of the Plot in the same area. In the first instant the expression "relocation" is alien to the provisions of the KDA Order and the statutory provisions clearly state that a particular plot cannot be used for any other purpose.
Obviously, respondent No,2 could not violate the mandate of statute by allotting a different number to the same plot.
12. We would, therefore, allow the petition and direct the respondents to treat the plot in question only as an amenity plot. The respondents Nos.5 and 6 are restrained from using the plot in question for any commercial purpose though they may be free to recover damages, if any, from the lessor or its officers for selling an amenity plot to them on commercial rates. The commercial structure will be removed by the respondents Nos.5 and 6 within one month.
13. All the pending applications stand disposed of.