MUSHIR ALAM, J. Petitioners are resident of bungalow No. 42A, 43-A, respectively in Muhammad All Johar Memorial Cooperative Housing Society, Karachi. (MAJMCS). It is claimed that residential Plot No. 44-A, measuring 2000 square yards was surreptitiously bifurcated into two plots measuring 1444.45 square yards and 555.55 square yards, remembered as 44-A and 44-A/1 respectively. It is claimed that the entire area of the MAJMCS is purely residential. It was claimed that Plot No. 44-A/1, (subject plot) was commercialized on 28.03.1992 by the Ministry of Works, Islamabad on the basis of NOC dated 01.02.1991 issued by the then KDA.
2. It is the case of. The petitioners that the despite repeated protest and complaints to the authorities concern, no action was taken and the commercial multi-storey building was allowed to be constructed in violation of, building laws, rules, and regulations applicable thereto.
3. It is claimed that through public notice in daily "Dawn" dated 20.07.2005, it was learnt that NOC 'dated 02.06.2006 has been issued to the respondent No. 6 for the sale and advertisement of shops/flats in the project under name and style "Sana Heights". Building plan for the basement, ground floor, plus upper 6 floors, was approved as against permissible limit of ground plus 2 floors only as originally approved on 01.02.1981. Petitioner urged that the impugned construction is violative of the KB&TP Regulations, 2002.
4. Respondent No. 3 KBCA, have supported the impugned construction. According to KBCA, no violation has been committed. Therefore, no action is warranted. As per KBCA, plan has been approved for lower ground floor, upper floor, loft, plus 1st to 5th floor and part of the 6th floor, vide approval dated 24.02.2005.
5. Respondent No. 6, Muhammad Ovais in his counter-affidavit, and counter-objection did not replied to the allegations as contained in the petitions as regard the conversion of residential plot into commercial and that of the connivance between the petitioners, and MAJCS, the respondent No. 4 herein.
6. CDGK, the respondent No. 2 filed a statement on 23.12.2005 not disputing the conversion of the Plot No. 44/A/I, by the MP&EC vide approval dated 01.02.1981, for raising ground plus two floor construction and subject to approval of Ministry of Works, Government of Pakistan. It is also stated that NOC was issued after inviting public objections, published in classified column in daily 'Mashriq' (Urdu) dated 01.10.1979 and 'Morning News' (English) dated 02.10.1979, objections were invited by Mrs. Farhat Saleem, the previous owner.
7. Mr. Iqbal Haider, learned counsel for the petitioner, urged the pursuant to promulgation of Sindh Local Government Ordinance, 2002, the KBCA is no more the competent authority to grant approval of the conversion and or construction of the building under the KB&TP Regulations and or under Sindh Building Control Ordinance, 1979. It was further urged that Sindh Building Control Ordinance, 1979 was impliedly repealed under Section 196 of the SLGO, 1979. Therefore, all action and proceedings taken by KBCA, the respondent No. 3 herein is illegal and beyond jurisdiction.
8. Without prejudice to above, he attacked the very bifurcation of the subject plot on the one hand and secondly its commercialization. According to him, originally subdivision of Plot No.44/A was allowed into two Plots Nos. 44-A and 44-A/1 respectively subject to condition that original zoning regulations would apply, vide letter dated 06.12.1980 (page 70 of the file). According to him the conversion of residential plot into commercial is against the KB&TP Regulations 1979 (Schedule 'D'
Regulation 26) as superseded by KB&TP Regulations 2002 (Regulation 3-1.1). It was urged that the advertisement was place by the owner and not by the authority concerned as required under the regulation, that too in classified column in newspapers of meager circulation. It was, therefore, argued that a thing required to be done in a particular manner in to be done accordingly, otherwise not. It was urged that the purpose of inviting objections in vernacular newspaper is to solicit objections from the public generally and from the resident of the locality in particular, who would be affected by such conversion, which object was frustrated.
9. As regards, approval of Building Plan, it was urged that originally ground and two stroyed construction was allowed, that too in violation of lease grant conditions. According to him in purely residential area, commercial complex cannot be allowed to be raised, even otherwise, and without prejudice, it is submitted that since the flats are being constructed have been grossly violated.
10. It is urged that loft as defined under Regulation 2-76 area has been approved in excess of Regulations, construction in compulsory open space has been made and, a guard room and other construction has been raised. It is urged that proposed building plan has been approved without provision of lift as required under Regulation No. 9.9. Mr. Lqbal Haider, learned counsel contends that the KBCA, without applying its mind mechanically grants approval of the building plan, obvious of the requirement its own KB&TP Regulation. It was, therefore, urged that the instant petition is allowed as prayed.
11. As regard the legal objection, premised on the ground of implied repeal of Ordinance, 1979 and jurisdiction of the KBCA, learned counsel for the CDGK, Mr. Manzoor and Mr. Mushtaq Memon have drawn our attention to the exhaustive judgment dated 01.06.2006 of a learned Division Bench of this Court on the issue in the case of Zaheer Ahmed Chaudhry vs. CDGK being C.P. No. D-960 of 2004.
We have examined the judgment authored by Mr. Justice Mujeebullah Siddiqui, J. As he then was.
The learned Bench in our opinion has dealt with the issue quite exhaustively and at length. In not shell it was held that the Ordinance, 1979 has not been repealed and that the Regulation 2002 have been framed in lawful authority under Section 21 of the Ordinance, 1979, there is no reason strong enough to form a different opinion and or examine the controversy once again.
Mr. Hasan Akbar and Mr. Amir Azim Khan, learned counsel for the MAJCS contends that in the matter relating to public interest, benefit of doubt if any goes to the public. Learned counsel have drawn our attention to letters of the MAJCS dated 15.01.2005 (page 91) and 02.03.2005 addressed to the respondent No. 1 opposing the construction of multi-storeyed building against the sanctioned ground and two floor by the Ministry of Works, the principle lessor.
13. Mr. Mushtaq Memon learned counsel for the contesting respondent No. 6, vehemently opposed the petition. It was contended that, the commercialization was effected in accordance with law, even the non utilization' fee at commercial rate was paid, mutation of the subject plot as commercial was effected by the MAJCS as reflected from the mutation letter produced as Annexure Z/11, filed alongwith the objection to the Architect report. As regard, provision of lift, it was contended that two lifts are provided, there is no violation of Regulation 9-9, ibid. Mr. Memon also points out that the building plan was forwarded by the MAJCS. Therefore, society cannot be allowed to take any exception. He placed reliance on 2003 YLR 1086 at 1090, He further urged that in a case reported as 2003 CLC 627 at 631 conversion from residential to school was approved. It was contended that the construction is being carried on strictly in accordance with approved building plan. Mr. Memon has also drawn our attention to page 329 Annexure Z/6 to the objections to the Architect's report, it is plinth certification dated 07.10.2005, issued by the KBCA, to urge that the construction is being ministered by the authority. It was further urged that the easmentry rights cannot be urged in the consultation petition, as held in 1996 CLC 1914. Mr. Memon, further relied upon 2001 SCM R 279 to urged that the conversion of the plot by the Ministry of Works cannot be questioned.
14. We have heard the arguments and perused the record . Admittedly the bifurcation and conversion of Plot No. 44-All was effected pursuant to NOC dated 01.02.1991 issued by the defunct KDA dated 01.02.1991 followed by commercialization by the Ministry of Works dated 28.03.1992. The controversy as to conversion by Ministry of Works was also examined by the apex Court in the case reported 2001 SCM R 279, as relied upon by Mr. Memon, to which lqbal Haider, learned counsel for the petitioner also conceded. He however, insisted that, in instant case conversion is against the Regulations 26 read with Schedule .'D' of Rehabilitation 1979 and so also Regulation 3-1.1 of Regulation 2002. It may be observed that on the date of conversion and bifurcation, Regulations 1979 were applicable and not the Regulations 2002, therefore, the Regulations 2002 cannot be invoked. In terms of Regulation No. 26 read with Schedule 'D', subdivision of any residential or commercial plot is permissible with the approval of competent authority i.e. Ministry of Works in instant case and subject to approval of MP&EC, and both the approvals have been placed on record. On the basis of record, it cannot be said the bifurcation was not per Schedule 'D' to the Regulation 1979.
15. Adverting to change in land use from the residential to commercial, Regulation 26 read with Clause 3 of Schedule 'D' to the Regulation 1979, lays down the procedure. It requires that Notice is to be published by the concerned Controller of Building in leading newspaper inviting objections within 30 days from the date of publication. No residential plot is to be converted except with the approval of MP&EC after recommendation of the concerned authority. There is nothing on record to show that the respondents No. 5 and 6 or their predecessor had given any justification for the conversion of residential plot into commercial, nor there is any material on record to show that the 2nd public notice for the change in land use was ever issued. Lqbal Haider is right in urging that the purpose of public notice in leading newspaper is to solicit public opinion and objections of the resident of particular locality. The CDGK has placed copies of the public notice published in classified column in newspapers as mentioned above that could hardly be said to be leading newspapers. Looking at the location of plots and the resident of the locality it was incumbent on the authority to at least invite the objection in terms of clauses 3(d) and 4(c) to the Schedule 'D' read with Regulation 26 of KB&TP Regulations 1979. Clause 3 to the Schedule 'D' ibid regulating conversion, in non-obstinate clause, it is to be strictly construed, learned counsel for the MAJCS were right in contending that legislation which is for the benefit of the public is to be construed that may advance the cause of public rather than individual. In our humble. opinion, the conversion of residential plot into commercial is against the Regulation, 1979. Even otherwise,. The Scheme of the MAJCS is a sanctioned scheme, no conversion or change in the original scheme could be brought in without complying the requirement of Sindh Town ,Planning Act, 1935, which has been ignored altogether.
16. As regard, construction, admittedly the purported NOC issued by the Master Plan- Department dated 01.02.1981 is subject to following conditions:-
(1) The owner should pay the conversion charges to the concerned Department/office.
(2) Compulsory open space and arcade should be left as marked on the attached plan.
(3) Height of the building at all be allowed ground plus two upper floors only.
(4) Ground floor shall be used for shops and upper floor for offices/flat.
(5) Subject to the approval of Ministry of Works Division, Government of Pakistan.
17. Presently as per report of KBCA dated 04.05.2006 construction up to first floor level has been raised, which is reported to be in accordance with approved plan. There is nothing on record to show, how the building plan for more than permissible limit as recorded in the above NOC has been approved, impugned building plan dated 24.02.2005 has been issued in total negation of above restriction as to number of floors, and against population density ratio. Therefore, any construction beyond approval limit even otherwise should not have been allowed. Another matter of concern is, since the promulgation of Regulation, 2002, the KBCA, has altogether ignored due compliance of Chapter 5 ibid.
18. Provisions of Chapter 5 ibid provide protection to the public against all the perils and hazards relating to quality of construction, insurance, timely completion, and other important matter and conditions governing relationship between the builder and the allottee in any public sale project.
19. To view of the foregoing, in our opinion, the conversion of residential sub-divided ,plot into commercial without due observance of provisions of Regulations 1979 and so also Sindh Town Planning Act is against law and cannot be sustained. Consequently, any superstructure built on illegal foundation cannot also be sustained, resultantly the petition is allowed. .