1. 'NADEEM AZHAR SIDDIQI, J.--- The plaintiffs by filing this suit has challenged the proposed commercialization of Plot No,9, Block 3, Modern Cooperative Housing Society, Karachi, and have also challenged the Change of Land Use and Master Planning Bye-laws, 2003 framed by City District Government Karachi under the provisions of Sindh Local Government Ordinance, 2001. The case of the plaintiffs is that Plot No,9, Block 3, Modern Cooperative Housing Society, Karachi, (hereinafter referred to as the said plot) is situated in a recognized residential area and the plaintiffs are the residents of that area from 25/50 years and that the residence of plaintiff No,3 is adjacent with the said plot and the residence of plaintiff No,7 is situated two to three bungalows away from the said plot. The society where the said plot is situated is purely a residential society and the lessee is bound by the covenants of the lease which can neither be altered nor it could be changed. It was stated in the plaint that as soon as the plaintiffs came to know about the conversion and commercialization of the residential house they sent complaint dated 29-8-2005 to the official defendants and a legal notice was also sent to defendant No,l. It was further stated in the plaint that the conversion/commercialization and/or construction of multi-storeyed building on the said plot the original low density residential character of the neighbourhood would be completely destroyed and the same would result in violation of the civil statutory and constitutional rights of the plaintiff to life, as enshrined in Articles 9, 14, 23, 24 and 25 of the Constitution. The proposed conversion and construction will also violate the easementary rights and being a source of perpetual nuisance for the plaintiffs. It was further pleaded that no permission has been sought from defendant No,5 and public objections have not been invited.
2. ' Along with the plaint application (C.M.A. No,7107 of 2005) under Rule 76 of the Sindh Chief Court Rules (O.S.) read with Order XXXIX, rules 1 and 2 was also filed wherein it has been prayed that the defendant No,1 (Owner) may be restrained from using the said plot for any other purpose except residential and restrain the official defendants from commercializing and/or approving the plans for commercial building.
3. ' After service of summonses and notices counter-affidavit has been filed by defendant No,6 only.
4. In his counter-affidavit the defendant No,6 has taken technical objections with regard to the maintainability of suit and that the plaintiffs have no cause of action and that the plaintiffs have not come to the Court with clean hands. On-merits it has been stated that the defendant No,6 is the purchaser of the plot from legal heirs, of late Haji Abdullah, the plot was leased by President of Pakistan through Ministry of Works. The said plot measuring 1000 sq. Yds. Is situated on 200 feet wide Shaheed-e-Millat Road, which was vide City Council Resolution No,383 dated 6-1-2004 was declared as commercial road pursuant to the commercialization policy and the procedure for conversion of plot from residential to commercial was provided in the policy named as Land Use and Master Planning Bye-Laws, 2003. The defendant No,6 vide letter, dated 14-10-2004 applied to defendant No,4 for permission to convert the plot from residential to commercial. The CDGK, KCHS Union and Modern Cooperative Society approved and forwarded the plan to Master Plan Group Offices, CDGK, for approval and _a public notice was issued in Daily Nation and Jasarat on 17-5- 2005. No objections were received from the alleged plaintiffs. The Master Plan Group Offices vide certificate/letter dated 29-6-2005 gave its approval to the change of land use and the defendant No,6 was asked to pay conversion fee of Rs,8 million and TPS fee of Rs,1,00,000 for processing. The next step after the approval of NOC is the approval of the lessor (defendant No,5). It was further stated in the counter-affidavit that number of plots in the said area have been commercialized in accordance with law including Plot No,3, Block 3, Modern Cooperative Housing Society, and Plots Nos.2 and 3 have also been commercialized. It was further stated in the counter-affidavit that the area is not purely residential as number of buildings exist in the same locality and that the said plot is situated on a declared commercial road and there are no restrict covenants and the matter of restrict covenants is between the lessor and the lessee and the plaintiffs have no right in respect thereof. Clause 7 of the lease deed clearly provides that the land can be converted by the lessor and the construction to be carried out on the said plot will be governed under the Sindh Building Control Ordinance, 1979, and the Karachi Building and Town Planning Regulations, 2002. It has been submitted that no fundamental rights of the plaintiffs are being violated and the conversion was in accordance with law and the building to be constructed shall be strictly in accordance with the approved plan. Defendant No,6 has prayed for dismissal of the application.
5. ' The plaintiffs have filed rejoinder to the counter-affidavit filed by defendant No,6 wherein it has been submitted that bye-laws are beyond the scope of statute and are contrary to the lease grant conditions, the Town Planning Act, 1915, the Regulations, 2002 and in violation of vested rights and natural justice. The detailed procedure given in the CDGK Policy ignores the Town Planning Statute and technical justification that need to be made before the proposed change of land use is put to public in their favour.
6. ' The defendant No,3 filed written statement and challenged the maintainability of the suit. In their written statement the defendant No,3 submitted that KCHS gave its NOC and forwarded the plans to Master Plan Group of Offices, CDGK. The plot in question is not the only plot commercialized. The plot is situated on 240 feet wide Shaheed-e-Millat Road, which is one of the 17 roads declared open for commercialization and front facing plots on 17 roads can be converted into commercial by adopting prescribed procedure and on payment of prescribed fee. It was pleaded in the written statement that provision of development of infrastructure in the conversion/change of land use policy has been provided. It has been provided that 37.5% revenue generated by the conversion/change of land use will be utilized in the same locality of converted plots with the consent of the concerned U.C. Nazim and 27.5% revenue will be utilized for development works in other remaining agencies and 10% amount will be used in other areas.
7. ' Ms. Rizwana Ismail, learned counsel for the plaintiffs, has contended that the commercialization of a residential plot is subject to the easementary rights of neighbours and vested rights acquired by the neighbours by lapse of time cannot be taken away by subsequent legislation. She further submits that no commercialization can be initiated without first obtaining the consent from the lessor. She further submit that the 'Bye-Laws of 2003 is beyond the powers vested in the City District Government Karachi and the bye-laws cannot be framed. She further submits that without providing infrastructure which is required for multi-storeyed building NOC for commercialization has been granted which is in violation of the fundamental rights of the plaintiffs. She further submits that the plaintiffs have made out a prima facie case and are entitled to the injunction as prayed.
8. ' On the other hand Mr. Abid S. Zuberi, learned counsel for defendant No,6, has submitted that the Bye-Laws 2003 has been lawfully framed by the City District Government Karachi and the proceedings for commercialization have been lawfully initiated in terms of the said Bye-laws. He challenges the locus standi of the plaintiffs to file the suit and to object the commercialization. He contended that the said plot is situated on a declared commercial road and the plaintiffs cannot object the commercialization of 'the plot. He referred clauses 4 and 7 of the lease (Annexure "CA-3" to the counter-affidavit) which provide that the plot will be used for residential purpose only and shall not be used for any other purpose except with the previous consent in writing of the lessor. He further submits that no objection can be taken to interfere with the administrative functions of public functionaries. He further submits that in case of any violation of the lease only lessor can challenge the same and not by the other residents of the area. He further submits that mere apprehension of nuisance due to lack of amenities cannot form the basis for grant of interim relief.
9. He further submits that unless the law is declared ultra vires it has to be given effect and no injunction can be granted.
10. ' Mr. Manzoor Ahmed, learned counsel for defendant No,3, adopted the arguments of Mr. Abid S. Zuberi and submits that the conversion was allowed strictly in terms of Bye-Laws, 2003 and the plaintiffs have no right to object the conversion.
11. ' I have heard the learned counsel for the parties, perused the record and gone through the judgments cited by the learned counsel.
12. ' From the perusal of the pleadings and the arguments advanced by the learned counsel it appears that the said plot is situated in a B residential area and the lease was executed for the purpose of using the said plot as residential.
13. ' The learned counsel have argued at length in respect of various aspect of the case and cited number of case-law in support of their contentions. The issues involved in this case are complicated questions of law and facts and cannot be decided without evidence. The plaintiffs apart from other pleas claim violation of their easementary rights, which cannot be decided without evidence. The plaintiffs also claimed that the Change of Land use Bye-Laws, 2003 is in violation of fundamental rights guaranteed in the Constitution.
14. 'It is the right of every person to live in a peaceful environment, clear atmosphere and the right to have protection from encroachment on privacy and liberty. Any law insofar as it is inconsistent with the rights conferred by Chapter 1 of the Constitution of Pakistan, 1973, shall to the extent of such inconsistency be void. However, at this stage it will not be appropriate to give any findings in this regard. Presently the issue before me is whether the plaintiffs have made out a prima facie case and the balance of convenience is in their favour. Admittedly, the said plot is situated in a residential area and the plaintiffs are residents of the said area. The plaintiffs have right to object construction of high rise building in their neighbourhood provided they establish that their right of privacy, light and air will be disturbed. Apparently, the proposed commercialization is in violation of clause 7 of the lease which reads as under:-- "The said plot, and the buildings, or erection built thereon from time to time shall be used for residential purposes only, and shall not be used for any other purpose except with the previous consent in writing of the lessor."
15. ' Admittedly till today the defendant No,6 has not obtained any approval from the lessor i,e, defendant No,5 and without its approval the defendant No,2 vide its letter dated 29-6-2005 (Annexure "CA/13" of the counter-affidavit) has issued NOC for change of land use and demanded a sum of Rs,81,00,000 from defendant No,6, who deposited the same on 27-9-2006. The bye-laws framed by defendant No,2 do not provide for any approval from the lessor. Apparently the NOC issued by defendant No,2 is in violation of lease conditions and the defendant No,6 taking advantage of Bye-Laws, 2003 cannot violate the lease conditions. As far as the contention of Mr. Abid S. Zuberi that only lessor can object the violation of lease conditions, it is suffice to say that the breach of lease conditions has a direct bearing upon the vested rights of the plaintiffs and they have right to object the same and to protect their vested rights. Apart from breach of lease conditions the plaintiffs have also claimed violation of easementary rights and in para.6 of the plaint have also provided the details of the same, The violation of easementary rights are independent from the violation of lease. Tentatively, it can be said that construction of high rise commercial building in the vicinity of a recognized residential area without providing necessary infrastructure will not be in the interest and welfare of the plaintiffs. In the case of Abdul Razzak v.
16. Karachi Building Control Authority and others PLD 1994 SC 512 the Honourable Supreme Court has held as under:-- "(21) It may be mentioned that framiing of a housing scheme does not mean simpliciter, levelling of land and carving out of plots, but it also involves working out approximate requirements of water,electricity, gas, sewerage lines, streets and roads etc. If a housing scheme is framed on the assumption that it will have residential units 1+1. But factually the allotees of the plots are allowed to raise multi-storeyed buildings having flats, the above public utility services will fall short of requirements, with the result that everyone living in the aforesaid scheme will suffer. This is what has happened in Karachi. Without any planning and without expanding the provisions of the above items of public utility services, the people were allowed to erect multi-storeyed buildings having shops and flats. In consequence thereof everyone living in, Karachi is suffering. There is scarcity of water, some people even do not get drinking water. The above other items of the public utility services are short of demand. Roads and streets are normally flooded with filthy and stinking water on account of choking and overflowing of sewerage lines. To reduce the miseries of most of the Karachiites, it is imperative on the public functionaries like the Authority to ensure the adherence to the Regulations. However, it may be clarified that it may not be understood that once a scheme is framed, no alterations can be made. Alterations in a scheme can be made for the good of the people-at-large, but not for the benefit of an individual for favouring him at the cost of other people. It may be stated that under Article 30 of the Order, the K.D.A. Has been empowered to execute the following types of schemes:--
(a) a general improvement scheme;
(b) a re-building scheme;
(c) a re-housing scheme;
(d) a street scheme;
(e) a deferred street scheme;
(f) a development scheme;
(g) a housing accommodation scheme;
(h) a town expansion scheme;
(i) a zonal plans scheme;
(j) a transport scheme;
(k) a drainage and sewerage disposal scheme;
(1) a scheme for the redistribution of sites; and
(m) health and welfare scheme; ' The above scheme include re-framing of schemes."
17. ' In this case also without providing any infrastructure necessary for high rise commercial building NOC was issued by defendant No,2. It is necessary to mention here that neither defendant No,2 has filed any reply to the injunction application nor submitted any document to show that necessary infrastructure has been provided.
18. ' In the reported case of Messrs Continental (Pvt.) Limited v. Government of Sindh through Secretary, Housing Town Planning Department, Karachi and another 1996 CLC 417 a learned Division Bench of this Court has held as under:-- ' .... It would be pertinent to observe that one of the prime duties of every Government is to ensure requisite provision of water, sewerage, a pollution-free environment etc., without which any' residential project will not only be incomplete but will also add to the magnitude of the problems of the residents of area or locality. As such it will be in public interest not to permit any residential scheme to assume a size and dimension which is in flagrant disregard of the availability of utilities.
19. One will certainly notice mushroom growth of high-rise buildings in Karachi predominantly motivated by Commercial considerations which without being equipped with necessary amenities had intensified the every growing miseries of the urban population.
20. ' Mr. Abid S. Zuberi has contended that the Bye-Laws, 2,003 are not in conflict with SLGO, 2001 and unless the law is declared ultra vires it has to be given effect and no injunction can be granted. He relied upon the cases of Federation of Pakistan v. Aitezaz Ahsan PLD 1989 SC 61 and Ejaz Ali Jatoi v.
21. Liaquat Ali Khan Jatoi 1993 SCM R 2354. At this interlocutory stage it is not proper to discuss the vires of the Bye-Laws, 2003. He' further submits that no injunction can be granted under section 56(d) of the Specific Relief Act to interfere with administrative functions. The Court can interfere if the exercise is arbitrary, mala fide or without jurisdiction. The public duties have to be exercised in the interest and welfare of the public. If the public functionaries acted in violation of their duties and acted unjustly the same can be interfered. The officials of defendant No,2 without taking into consideration the lease conditions and without approval of the lessor allowed change of land use.
22. While allowing change of land use the objections filed by Shehri on 24-5-2005 received by Nazim Secretariat UC-7 was not considered at all. The public notices inviting public objections were published in Daily Nation and Jasarat. These dailies hardly have any readership in Karachi. Bye- Laws 2003 provides publication at two stages, one under Bye-laws 3-2 at the time of applying for change of use and the other under Bye-laws 3-3 calling public objections. The publications were made only once ignoring the bye-laws.
23. ' At this stage if the injunction application is dismissed the process of commercialization will be completed and the plaintiffs will suffer as after commercialization and construction of building the builder may create third party interest and it will be difficult to reverse the position and bring it to the position as on the date of filing of the suit. The corpus of the dispute is to be preserved during pendency of the E proceedings so that if any decree is passed the same can be executed.
24. ' Considering all the above aspects of the case I am satisfied that plaintiffs have succeeded to make out a prima facie case for grant of injunction as prayed. The balance of convenience is in their favour and they will suffer an irreparable loss and injury in case such injunction is refused.
25. ' In view of the above the listed application (C.M.A. No,7107 of 2005) is allowed and the injunction is granted as prayed.