1. 'MUSHIR ALAM, J.--- In instant suit for declaration and injunction, plaintiffs in all 21 in number, all residents of Jinnah Cooperative Housing Society have impugned the action of the defendants Nos.1 to 3 whereby, conversion of residential property into commercial was allowed purportedly in violation of law, rules and regulations applicable thereto.
2. ' Along with the suit, plaintiff filed C.M.A. No,7512 of 2004 (under Order XXXIX, rules 1 and 2, C.P.C.) and prayed for the injunctive relief against construction of high rise. Defendant No,7 filed C.M.A. No,39, under rule 4, C.P.C. Seeking vacation of restraining order and C.M.A. No,8038 of 2005 under Order VII, rule 11, C.P.C. Seeking rejection of plaint. Through instant order I intend to decide all the three applications.
3. ' Brief facts leading to suit and listed applications appears to be that all the plaintiffs are residents of Jinnah Cooperative Housing Society. Admittedly, the area wherein the plaintiffs reside including the subject plot is residential. The lease contains restrictive covenant running with the land. It appears that the defendant No,7 who succeeded defendants Nos.4 to 6, the previous owner of the plot in question, had applied and secured all the approval for the conversion and construction of multistorey building.
4. ' Plaintiffs on acquiring knowledge that, the defendant No,7 has applied for the conversion of the subject residential property into commercial and had already obtained NOC from the Society, lodged their joint protest dated 24-5-2004, with the defendants Nos.1, 3 to 6, Nazim of UC No,7, Jamshed Town, acting on behalf of the defendant No,1 Nazim called all the plaintiffs, who appeared on the given date and objected to the proposed conversion, excepting the defendant No,7 is the beneficiary who had applied' for the conversion. It is the case of the plaintiffs that the defendant No,1 without deciding the objections and assigning any reasons allowed the conversion of a residential property into commercial. Only beneficiary to the conversion is the defendant No,7.
5. ' Defendants Nos.1, 2, controvert the claim of the plaintiff in written statement. It was pleaded that due procedure was followed. Conversion was allowed as per Commercialization Policy of CDGK approved vide City Council Resolution No,383, dated 6-1-2004. It was further pleaded that the subject property is situated on Shaheed-e-Millat Road, which was already commercialized through Notification dated 12-2-1998 (correct date of Notification is stated to be 16-2-1998 at page 277 of the file) defendant No,7 has filed counter-affidavit to the injunction application. On 10-1-2005 Deputy Controller of Buildings-1, filed a statement placing on record Architectural approval of Basement+ Ground + Loft + 8 + Part 9th floor.
6. ' Ms. Rizwana, learned counsel for the plaintiff contended that, the entire area where the plaintiff resides and the subject property is situated is declared residential area. It was urged that all the leases of the residential plots including subject plot contain restrictive covenant providing for ground plus one floor residential accommodation, which condition is binding on the entire set of lessees and so also, on the grantor of lease. It was urged that change in land use could not be allowed without following the requirement of Town Planning Act of 1915 and Building and Town Planning Regulations, 1979 succeeded by KB&TP Regulations, 2002 as amended. In support of her contdntions, reliance was placed on the case of Nooruddin v. Gul Bano PLD 1973 Note (Kar.) 130 at page 199. In cited case conditions of Sanads read with Collector . Circular restricting height was enforced, this case was followed in the case of Nooruddin v. Amanullah D. Dharani 1979 CLC 252.
7. ' Learned counsel in her support further relied upon Schedule 3-B read with Appendix "D", Serial No,27 of Regulations, 2002. It was further urged that Regulations 18-4 and Regulation 18-5 of the KB&TP Regulation, 2002 as amended were violated.
8. ' Ms. Rizwana vehemently argued, the defendants are relying on the judgment passed in C.P. 936 of 2004 now reported as S.M. Aslam v. KBCA 2005 CLC 759, which, judgment was procured by misrepresentation by the parties therein. It was stated that the judgment is based on purported notification dated 2017-1998, which was never published. To buttress her argument she has relied on letter, dated 6th April, 2005 addressed to Mr. Abbas Ali, Additional Advocate-General by the Section Officer Services General Administration and Coordination Department, Government of Sindh, confirming that neither of the two notifications were received for publication in the official Gazette. Mr. Abbas Ali, Additional Advocate-General had placed copy of said letter on the record.
9. According to Ms. Rizwana, judgment in C.P. 936 of 2004 is per incurium as it is based on invalid notification, therefore, not binding and should be ignored in support of her contention reliance was placed on the case of Abdul Razzak v. The Collector of Customs 1995 CLC 1453.
10. ' Ms. Rizwana further contended that the JCHC is a notified scheme, it cannot be changed save in accordance with section 46(1) of the Town Planning Act of 1915. It was urged that the Commercialization Policy is beyond the scope of SLGO, 2001 and in conflict with Town Planning Act, 1915 and so also KB&TP Regulation, 2002 as amended. According to her Government of Sindh in terms of section 192, SLGO, 2001 has power to issue rules and bylaws, but in the instant case commercialization notification is issued by the CDGK, that too is not gazetted.
11. ' It was, therefore, contended that the conversion being violative of land grant condition, beside violative of applicable law and KB&TP Regulations. No commercial or high rise building could be permitted. Plaintiffs have prayed for confirmation of ad interim orders. Ms. Rizwana has relied upon plethora of judicial presents in support of her .Pleas.
12. ' Mr. Faisal Siddiqui learned counsel for the CDGK, denied the allegation that no hearing was given to the petitioners, it was contended that notices inviting public objections were published in newspapers on 13-6-2004 and 14-6-2004 available at pages 165 and 167 of the file. Plaintiffs were heard and reasoned order, dated 22-9-2005 was passed available at page 115 of the file. It was contended that all the concern of the plaintiffs as regard burden or strain on existing amenity and utility services were duly taken care of. It was argued that, it is first time civic agency has acted responsibly.
13. ' Mr. Faisal, urged that the "Change of Land Use and Master Planning Bye-Laws 2003"; adopted vide Resolution 383 dated 6-1-2004, were framed under section 192(2) of the SLGO, 2001 and not under Sindh Building Control Authority Act, 1979 or under Sindh Town Planning Act, 1915.
14. ' Mr. Malik, learned counsel for the defendant No,7 urged that the conversion has been allowed by the competent authority, complexion of the entire area has changed. It was contended that there is no conflict between KB&TP Regulations, 2002 and Change of Land use and Master Planning Bye- Laws, 2003. It was urged that law should be allowed to operate until it is declared ultra vires. In support of his contention, reliance is placed on Atezaz Ahsan's case reported in PLD 1989 SC 61(64) and Jatoi's case reported in 1993 SCM R 2350. It was urged that planning and development of the city is the function and domain of the City District Government under section 14 of the SLGO, 2002 read with item No,(vii), of the 1st Schedule thereto and not that of the Provincial Government.
15. ' I have heard the arguments and perused the record.
16. ' Much emphasis was laid on the fact that the property is situated on Shaheed-e-Millat Road since declared commercialized per notifications and that the road has been commercialized.
17. ' The plaintiffs made serious dispute and challenged to the validity of notification. To resolve it, the Court vide order, dated 7-4-2005 and 13-4-2005 directed the Additional Advocate-General Sindh and Mr. Manzoor Ahmed, the Principal Law Officer of CDGK to place the correct position as regards subject notifications. Mr. Abbad Ali placed on record letter dated 16-4-2005 addressed to him by the Section Officer, Services, General Administration and Coordination Department, Government of Sindh, which reads as follows:-- Subject: Suit No,1221 of 2004, Muhammad Munir v. Province of Sindh.
18. ' I am directed to refer to your letter No,AG-1183 of 2005 dated 11-4-2005 on the subject noted and to state that the Notification No, PA/DS(B)/SGA&CD/4496/98 and PS/DS(B)/SGA&CD/ 4808/98, dated 20-7-1998 were not available in the record of this department. However, copy(ies) of the same have been obtained from your office.
(2) Both the notifications are not endorsed for publication to Superintendent, Sindh, Government Printing Press.
19. (Sd.) Ali Ahmed Baloch Section Officer (General)
20. ' Mr. Manzoor Ahmed was not able to refute such position he however, stated that the same were sent for publication. Therefore, prima facie, the defendants cannot rely on the Notifications to claim commercialization. It may however, be observed in the case of S.M. Aslam v. KBCA 2005 CLC 759, the issue as to publication, implication, validity or otherwise of the subject notifications was neither raised nor considered and case was decided on the assumption that the Notifications were validity issued. The judgment in the referred case is sub judice before the apex Court, it would, not be apt to make any observation.
21. 'Since the question of validity of subject notification has been raised in instant matter, it was examined. In terms of Article 40(3) of the then K.D.A. Order, 5 of 1957, for a Notification to be effective and lawful, application in the official Gazette is a condition precedent, which admittedly was not done. I am extremely doubtful as to the effect and validity of notifications, without being gazetted as per requirement of Article 40(3) of K.D.A. Order. For reference one may see K.M.C. v.
22. Messrs S.N.H. Industries (Pvt.) Ltd. 1997 SCM R 1228. The issue needs serious examination as large number of cases would be affected. I leave it open to be decided at trial.
23. ' As regards contention of learned counsel for the petitioner that the lease contain restrictive covenant, though not disputed, but the fact that terms and conditions of lease has not been placed on record. Even the contesting defendants have not filed the written statement. What is the effect of the restrictive covenant, it implication on the over all scheme and how far it bind and restrict the respective residents and owner of the property in any particular scheme cannot be examined and thrashed out at this interlocutory stage, such question requires detail examination both on facts and law.
24. ' There seems to be no dispute that the subject plot was originally a residential plot over which ground plus one floor was permissible. Admittedly objections were invited and even the plaintiffs were given audience, by the Nazim UC-7, Jamsheed Town. Grievance of the petitioners is that no justification or decision on the objections raised by the plaintiff were made and simply in a mechanical manner permission for the high rise was giveil behind the back of the plaintiff. My attention was drawn to the NOC dated 22-9-2004, whereby the CDGK has granted conversion of land use on the application of the owner of the plot such NOC does not deal with the objections of the plaintiff, though it was argued that objection of the plaintiff were considered and taken due care of. Serious questions as to applicability of Town Planning Act, 1915 and Karachi Building and Town Planning Regulations, 2002, nothing has been placed on record to show that full technical justification of the proposed land use, in the light of planning of the area, commercial facilities in the vicinity, traffic flow and other relevant factors as to availability of enhanced utilities and sustainable infrastructure were undertaken or not as required under Regulation No,18-4.2 of KB&TP Regulations, 2002.
25. ' Serious disputed question of facts and law are involved in instant matter. Under given facts and circumstances, if the building is allowed to be constructed, it would give rise to more complication rather than resolving, most likely third party interest would be seriously affected and give cause to multiplicity of proceedings. Plaintiffs were able to make out prima facie case and balance of inconvenience tilt in favour of the plaintiffs. In my humble opinion it is in the fitness of the case that the controversy be resolved on merits. Accordingly ad interim orders passed earlier are confirmed.
26. C.M.A. No,39 under rule 4, C.P.C. Seeking vacation of restraining order and C.M.A. No,8038 of 2005 under Order VII, rule 11, C.P.C. Seeking rejection of plaint filed by the defendant No,7 are consequently"dismissed. Let the defendant No,7 and other defendants also file written statement and the matter be set down for striking out issues. If the parties concede controversy could be decided on the basis of documents, after admission and denial of documents is carried out.