' SABIHUDDIN AHMED, J.-The Nazir's report is taken on record.
2 & 3. The petitioner has contended that the respondent No, l who is the owner of Plot No,. 172-P, Block-2,P.E.C.H.S., Karachi, has got the aforesaid plot which was originally a residential plot illegally converted into a commercial plot and raising a multi-storeyed commercial building thereon. The respondent No,l on the other hand has contended in her counter-affidavit that the plot is located on the main Tariq Road, which has been commercialized since long. The petitioner had applied to the said respondent for grant of permission to commercialize the said plot and such permission was accorded to by P.E.C.H.S./lessor and erstwhile K.M.C commercialization charges were also deposited with the latter. As such it was urged that no further question of permission for commercialization was required comments were also filed on behalf of the respondent No,2 (K.B.C.A) which were accompanied by a number of documents including copy of a Resolution of the Governing Body of the K.D.A. Dated 20-5-1979 allowing conversion of residential plots on Tariq Road. Khawaja Shamsul Islam, however, argued that such a document was not authentic and in any event could not be given legal effect, inasmuch as it was passed without inviting objections from the public or residents of the area in accordance with the requirements of the K.D.A Order 1957.
3. We consequently directed learned counsel for respondent No,3 (which has assumed functions of the K.D.A after repeal of the said Order) to cause production of the Minute Book to verify the position. Unfortunately, the order was not complied with till we directed the D.C.O to appear, personally along with said Minute Book, who has appeared today and the Minute Book has also been produced.
4. We have verified that the copy of resolution filed on behalf of the respondent No,2 is an authentic reproduction of the resolution actually passed but there is nothing to suggest that any public objections were ever invited prior to the passing of the resolution. Neither the D.C.O nor any other officer present appeared to be in a position to inform the Court whether such objections were invited as none of the officials appeared to be aware of what had actually happened 28 years ago.
In the circumstances, we would assume that such objections were not invited.
5. Mr. Shamsul Islam argued that respondent No,l had admittedly been allotted a residential plot and its conversion into one for commercial purposes without inviting public objections was unlawful. In this context he relied upon the provisions of Articles 40(4), 52-A and 84 of the K.D.A Order, 1957. It may be useful to reproduce the aforesaid provisions in extenso:- "40. Zonal Plan Scheme.---(1) The Authority may, from time to time, in regard to any area wholly within or wholly without or partly within and partly without the city, make Zonal Plans showing the purpose 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.
(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 Provincial 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 clause (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 give notice to all persons it deems affected.
(5) If the Authority refuses permission to any person, such person may within thirty days of the Authority's refusal, move the Provincial Govermnent for a revision of the case.
(6) The decision of the Provincial Government on any such revision shall be final.
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, hospitals, schools, colleges, libraries, play- grounds, gardens, parks, community centres, mosques, graveyards or such other purpose and the Commissioner shall notify such details in the official Gazette.
(2) The Authority or 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 notice published in one English and vernacular reading local daily newspaper and the objections, if any, shall submit 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.
84. Power to regulate future construction of certain classes of buildings in particular streets or localities. ---(1). The Chairman may give public notice of his intention to declare, subject to any valid objection that may be preferred ' within a period of three months.
(a) that in any street or portions of streets specified in such notice the elevation and construction, of the frontage of all buildings thereafter erected or re-erected shall, in respect of their architectural features, be such as the Authority may consider suitable to the locality; or
(b) that in any localities specified in such notice there shall be allowed the construction of only detached or semi-detached buildings or both and that land appurtenant to each building shall be of an area not less than that specified in such notice; or
(c) that in any localities specified in the notice the construction of more than specified number, of houses on each acre of land shall not be allowed; or
(d) that in any streets, or portion of streets, or specified in such construction of shops, warehouses, factories, huts or buildings of a specified architectural character, or buildings designed for particular use shall not be allowed without the special permission of the Authority.
(2) The Governing Body shall consider all objections received within a three months from the publication of such notice and shall then submit the notice with a statement objections received and of its opinion thereon to the Authority.
(3) No objection received after the said period of three months shall be considered.
(4) Within a period of two months after the receipt of the same the Authority shall submit all the documents referred to in clause (2) with or without a statement of its opinion thereon to the Provincial Government.
(5) The Provincial Government may pass such orders with respect to such declaration as it may think fit: ' Provided that such declaration shall not thereby be made applicable to any street, portion of street or locality not specified in the notice issued under clause (1).
(6) Declaration as confirmed or modified by the Provincial Government shall be published in the official Gazette and shall take effect from the date of such publication.
(7) No person shall erect or re-erect any building in contravention of any such declaration.
6. A bare reading of Article 84 indicates that it confers certain powers upon Provincial Government to regulate future construction of buildings in particular streets of localities. The Chairman KDA is empowered to give public notice of his intention to impose certain conditions after public notice.
The objections to the proposal received within three months of the publication of the said notice are to be considered by the governing body, which is required to record its opinion and refer the same to the Provincial Government. The Government may then confirm or modify the recommendations which are to be published in the official Gazette and take effect from the date of such publication. Upon such publication no person can erect or re-erect any building in contravention of such declaration.
7. Evidently the petitioner could have relied upon Article 84 in case construction was being raised by the respondent. No, 1 in contravention of a declaration under Article 84(7). However, no such declaration has been relied upon, therefore, Article 84 appears to be altogether irrelevant for the purpose of the instant controversy. Article 52-A(1) provides that plots in a housing scheme reserved for roads, hospitals, educational institutions, libraries, playgrounds, parks and mosques etc. (amenity plots) are to be notified in the official Gazette and under clause (2) the Authority or a housing society may prior to the utilization of any plot so reserved apply to the Commissioner for conversion for any other purpose.. Under clause (3) the Commissioner is to invite public objections to such conversion Through the press and after hearing the objector forward his recommendation along with the application to the Government for orders. Evidently the above provision relates to conversion of amenity plots for any other purpose upon the 'application of the Authority or a housing society and has nothing to do with conversion of a residential plot for commercial purposes made by individual owner.
8. The only provision applicable in the instant case appears to be Article 40. Under clause (1) the Authority is required to frame a Zonal Plan Scheme in respect of any area showing the purpose for which any land in such area which may indicate that any area will be reserved for residential, commercial, industrial or agricultural purposes etc. Under clause (3) such claim is required to be notified in the official Gazette and no person can utilize the land for a purpose other than that notified in the Zonal Plan Scheme unless permitted to do so. Clause (4) stipulates that any person desirous of using land for a purpose other than that laid down in the Zonal Plan scheme may apply to the authority for permission to do so and such permission may be accorded after public hearing to be held after notices to all persons likely to be affected.
9. Mr. Shamsul Islam appears to be right to the extent that if the plot in question was meant for residential purposes under Zonal Plan Scheme its use for commercial purposes could not be permitted without a public hearing in terms of Article 40(4) or neighbours and Mr. Khalid Javed Khan was unable to show that any such public hearing was ever held. He nevertheless, argued with a great deal of emphasis that 90% of the plots on Tariq Road were in fact being used for commercial purposes and we could take judicial notice of this fact. In the circumstances refusal of permission to the petitioner, might amount to hostile discrimination.
10. Quite frankly we are not impressed by this contention. It is not a case where the respondent No, 1 has called in question any order of the erstwhile K.D.A on the ground of being violative of Article 25 of the Constitution. Mr. Shamsul Islam appears to be quite right in contending that the power to convert change of user i.e, allow a. Residential plot for commercial usage vested in the K.D.A and neither in the erstwhile K.M.0 or the K.B.C.A. Indeed Mr. Khalid Javed placed reliance upon the approval of the building plan by the K.B.C.A. apparently granted under sections 6(3) of the Building Control Ordinance. He attempted to argue on the premises of the pronouncement of the Hon'ble Supreme Court in Excell Builders v Ardeshir Cowasjee and others (1999 SCM R 2089) to the effect that the provisions of the Building Control Ordinance or Regulations made thereunder prevailed over the provision of the K.D.A. Order and therefore, once a plan for construction of a commercial building had been approved by the K.B.C.A failure to seek permission under the K.D.A. Order became inconsequential.
11. Indeed there could be no cavil with the proposition of law laid down by the Hon'ble Supreme Court which in any event is binding upon us. Nevertheless, we are afraid it seems to be of little help to Mr. Khalid Javed Khan. Certainly the provisions of the Building Control Ordinance would prevail upon those of the E K.D.A. Order but only when they appear to be repugnant to each other.
However, we do not find any such repugnance in the context of the above case. Apparently under the K.D.A. Order a plot could be used for constructing a particular type of building in an area. Under the Building Control Ordinance a building plan had to be approved before commencement of actual construction.
12. Mr. Khalid Javed Khan then relied upon the Resolution of the Governing Body of the K.D.A. Dated 20-5-1979. What needs to be determined is the effect of this resolution which ought to be determined on the basis of the provisions of the K.D.A. Order. Mir Hussain Ali D.C.O who produced the Minute Book attempted to explain that policy decisions were laid down by Governing Body Resolutions while they had to be put into operation by concerned officers of the K.D.A. Mr. Shamsul Islam argued that the resolution had been passed without inviting public objections and as such could not be given effect to. We are afraid we do not find any force in either of the contentions.
There is no provision in the K.D.A. Order requiring that the Governing Body, could pass Resolution only after inviting public objections.
13. This brings us back to a consideration of the provisions of Article 40 of the K.D.A. Order. Under clause (1) a Zonal Plan Scheme is to be prepared which becomes operative after approval by the Provincial Government and its notification in the official Gazette in terms of clause (3). Once such Scheme is notified no person can we land for a purpose other than laid down in the scheme unless permitted to do so under clause (4). Clause (4) enables the authority to permit change of use after public hearing and notice to affected persons in deviation of the scheme.
' Admittedly no such hearing was accorded to the respondent No,
1. All that needed to be seen was whether the scheme itself had ever been amended and we were persuaded to investigate this question considering the fact that most of the buildings on Tariq Road had been commercialized.
14. Accordingly we issued notice to the learned A.G Sindh and also requested learned counsel representing public agencies to acquire information as regards any such notification. After some efforts Mr. Shahid Jameeluddin learned counsel for respondent No,3 succeeded in placing before us a Notification dated 20th July 1998, issued by the Chief Secretary, Sindh containing several decisions relating to construction of building. Clause (b) of the aforesaid Notification stipulated that Commercialization of plots shall be allowed on six roads which were declared G commercial by the Government of Sindh in 1989 which 'included Tariq Road and its extensions upto Bahadurabad commercial area. It is therefore, evident that the Zonal Plan Scheme was amended in 1998 in terms of Article 40(3) and Tariq Road had been declared commercial area by the Sindh Government. Once this fact is established no question of granting permission in deviation of the Scheme in terms of Article 40(4) arises. For these reasons we were constrained to dismiss this petition with no order as to costs. These are our reasons for the short order announced in Court on 9-12-2003. We are grateful to all learned counsel appearing in this matter for providing valuable assistance.