Mst. UMMATULLAH through Attorney vs PROVINCE OF SINDH through

' MUSHIR ALAM, J.--Petitioner has challenged the permission dated 25-4-2008 (P17), granted by the Deputy District Officer (PP&CNG),CDGK, the respondent No,3, whereby a portion of residential Plot bearing No,E-20, Block-F, Scheme No,2, North Nazimabad, Karachi, adjoining petitioner's property, was converted into "CNG filling station". Petitioner has also impugned the notification No,S0.

(LAND)HTP/KBCS-3-39-290, dated 29th October, 2002 (P/13) published after 6 years from the date of issuance, in the Sindh Government Gazette dated 16th October, 2008, issued by Government of Sindh, Housing and Town Planning Department, in purported exercise of authority under Section 21- A of the Sindh Buildings Control Ordinance, 1979 (SBCO 1979) whereby Regulation 25-12.2 was amended to include residential plot beside commercial and industrial that could be used for the installation of CNG Station.

2. Brief facts appears to be that the petitioner, over 70 years of age, is owner of a residential property bearing No,E-21, Block-F, North Nazimabad, Karachi since 1966. It is not disputed that the subject area is purely residential. Respondent No,6 owner of adjoining residential property obtained bifurcation and got converted a portion thereof into "CNG filling station".

3. Additional District Officer (ADO)(PP & CNG) of Master Plan Group of Offices, CDGK through public notice in daily Jasarat, Karachi, dated 23-11-2007, invited objections to consider proposed conversion of subject property into "CNG filling station". Petitioner filed objections on 3-12-2007, which were heard on 16-4-2008 and permission was granted through impugned order dated 25- 4-2008, Annexure-P/7 to the memo. Of petition (at page 51).

4. Mr. Badar Alam, learned counsel for petitioner, contended that the entire exercise of converting the residential property into "CNG filling station" was pre-arranged and mala fide. It was urged that invitation of objections, by the functionary not competent, were all sham and colourable exercise of the authority, vitiating the same.

5. Impugned order, it was urged, also exposes complicity between respondent No,6 and other public 'functionaries. On the one hand ADO (PP & CNG), brushed aside objections of the petitioner on the ground that "it was informed to the complainant that the applicant has completed all codal formalities according to the Karachi Building & Town Planning Regulations-2002 amended to date for Installation of CNG Station on Plot No,E-20, Block-F, North Nazimabad, Karachi". It was therefore, argued that formalities for the CNG Station, could only be complete once permission for conversion had been granted in accordance with law and not before. It was next argued that in the press advertisement reference to an undated notification No, SO (Land) HTP/KBCA-3/39/2000 was made, petition was filed on 7-8-2008 and to circumvent the objections as to legality of said notification raised in the petitioner's rejoinder, it was got published on 16-10-2008, therefore, the petitioner after obtaining permission from the Court has filed the amended petition impugning the said notification as well.

6. His objections to the impugned notification are three folds; firstly, that the notification carries date as 29-10-2002, whereas, it was actually published on 16-10-2008. Impugned notification applies, subject to validity, prospectively. Secondly; the impugned notification was issued in purported exercise of power under Section 21-A of SBCO 1979, by the Government of Sindh, and not by the 'Authority' competent under the law to issue the same. According to petitioner, at the relevant time City Nazim, was the 'Competent Authority'. Thirdly; matter relating to conversion or change of land use is beyond the purview of SBCO 1979, such matter fall within the domain of SBCO 1979. Therefore, impugned notification dated 16-10-2008 substituting Regulation No,25-12.2, KB & TPR 2002, and all other enabling regulations permitting installation of CNG Station, over residential plot like commercial and industrial plot, is ultra vires the SBCO, 1979 thus liable to be struck down.

7. Without prejudice to the above, it was argued that Regulation No,18-5.1.1. Of KB & TPR, 2002 also provides that individual cases of conversion cannot be considered in isolation unless there is a common policy for the change and conversion in respect of any particular area on commercial exigency and uniform commercialization. It was urged that there is no policy shift in respect of subject area, and in instant case subject plot has been dealt with in isolation, in negation to the stated object of law. According to Mr. Badar Alam, change of land use is only permissible in terms of Section 39 (c) read with Section 40 (a) the Sindh Local Government Ordinance, 2001 (SLGO 2001), which empowers the authority to approve master plan, carry out zoning, decide land use plan, including classification and reclassification of the land . It was urged that pursuant to power conferred as stated above Council of CDGK framed "Land use & Master Planning-2003, Bye-laws", according to him, change in land use could only be done under SLGO and not in SB&TPR.

8. Mr. Badar Alam, learned counsel, took us to the advertisement published on 23-11-2007, inviting objection against conversion of residential plot for CNG Station, Annexure-p/4 to the memo. Of petition (at page 45), to show that the bifurcated residential plot is shown to be measuring 600 square feet, conversion is shown to be permissible by Government of Sindh, per Notification No, SO

(LAND) HTP/KBCA3/39/2000, permission of commercialization is dated 25-4-2008. Whereas, subject notification was gazetted on 16-10-2008. It was urged that the invitation of objections against conversion of residential to CNG Station manifestly shows that the inviting objections was merely a cover-up as the purported notification, on the basis of which such conversion was allowed, was non-existent at the relevant time, impugned notification, if at all, came into effect on 16-10-2008.

9. It was urged that the impugned amendment in SB&TPR 2002 are ultra vires SBCO, 1979 and alternately impugned notification would apply prospectively from the date of publication and not merely from the date shown in the notification. In support of his contention, he has relied upon the case law reported as Narayan Chandra v. Corporation of Calcutta, 1909 Indian cases 259. He, therefore, prays that the petition may be allowed, impugned conversion in respect of the residential plot into CNG station may be struck down, and the impugned notification be held to be without lawful authority, ultra vires and if at all Court comes to a conclusion that it has been issued under the proper authority in exercise of rightful jurisdiction then it be declared that it has no retrospective application but would apply prospectively.

10. Messrs, Moin Azhar Siddiqui and Shamshad Ali Qureshi, learned counsel for respondents Nos.6 and 7 vehemently opposed the petition. It was contended that the plot in question has been converted strictly in accordance with law. It was urged that the date of notification and not the date of publication is relevant to make a notification effective. According to Mr. MoM, publication of notification in the official Gazette, it is not the requirement under SBCO 1979. In support he relied upon; Saghir Ahmed v. Province of Punjab PLD 2004 SC 261, where the apex Court while examining the word "notified" as used in Section 3 of Punjab Acquisition of Land (Housing) Act 1973 at page 263 held that there is specific stipulation of publication of such an approval in the official Gazette.

At page 268 it was held that "it depends on the language of particular statute whether provision regarding publication of the notification in the official Gazette is mandatory or not". Reliance on Dewan Cement v. Collector of Customs and Sales Tax 2009 SC1VIR 1126 is of no assistance to the respondents, it was a matter of recovery of Sales Tax purportedly short recovered and question before the apex Court was whether it was a case of misdeclaration or otherwise under Rule 10 of the Sales Tax Rules. He next relied upon Muhammad Ali v. LDA 2002 MLD 607, where the notification under land acquisition was in issue and the Court held that same was published within reasonable time, therefore no exception was taken. Lastly reliance was placed on Muhammad Suleman v. Abul Ghani PLD 1978 SC 190, wherein the apex Court was called upon to interpret expression "declare by notification" as used in section 8(2) of Punjab Pre-emption Act 1913, at page 192 it was held to "mean a public declaration and not private declaration in secrecy of office of Board of Revenue". It was further held to "mean a notification published under proper authority in official Gazette".

11. Mr. Manzoor Ahmed, learned counsel for CDGK, while adopting arguments of Mr. Moin Azhar Siddiqui, urged that using the property for CNG station is not the conversion of the property for commercial or industrial use. According to him, CNG has become necessity; therefore, conversion of residential property into "CNG Station" is not violative of law. According to him, it is a different category altogether and now the regulations of KBTPR 2002 have been suitably amended/substituted to cater for the use of residential property for CNG station, which was earlier not provided for. According to him, Regulation 18-5 KB & TPR 2002 is not attracted in the instant case, as the subject plot has not been commercialized but has been allowed to be used for CNG Station, which is not a commercial activity.

12. When Mr. MoM Azhar Siddiqui, and Mr. Manzoor were confronted as to whether change of land use could be brought about under the SBCO, 1979 or under SLGO, 2001 and which authority is competent to issue the impugned notification that deals with the change of land use. They candidly concede that matter under discussion for "change of land use" is not provided for under SBCO, 1979 but is dealt with under SLGO, 2001.

13. Exercising right of rebuttal, Mr. Badar Alam, learned counsel for petitioner, urged that that the KB & TPR 2002 cannot travel beyond the scope of parent law itself. No regulation could be framed for the matters not covered by the parent law.

14. We have heard the arguments, perused the material available on record and thoroughly examined the case laws cited at bar.

15. Controversy regarding impugned notification, as stated earlier is threefold firstly; date of applicability of impugned amended notification. Secondly; competence of the authority and thirdly vires of impugned amended notification.

16. Examining the first contention as to prospectively or otherwise of the impugned amended regulations, general rule is that where any statute that does not set out a date on which it is to come into force than date of enforcement is the day it receives the assent from the assenting authority (i.e, President in case of Central enactment, and Governor in case of Provincial enactments) [Article 75(3) and Article 116(4) respectively of the Constitution, 1973]. See also section 5(3) of General Clauses Act 1897 and section 3 of Sindh General Clauses Act 1956). Where rules, order, regulation or circular having effect of law are issued in exercise of statutory power or delegated authority under any statute, applying ordinary prudence, same shall come into force on the date of publication in the official Gazette. (See section 20-A of General Clauses Act, 1897 and section 19-A, read with section 2(41) of Sindh General Clauses Act 1956). Same principle would apply where any amendment, addition, modification or substitution made in rules, order, regulation or circular made or issued under any statute. It needs no authority to say that Klbordinate delegated legislative instrument applies prospectively unless now to promulgate it retrospectively is specifically conferred or delegated under statute if any authority is needed one may see Hashwani Hotel Ltd. v. Federation of Pakistan PLD 1997 SC 315 and M/s. Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992. SCMR 1652 and Dadabhoy Cement Industries Ltd. v. NDFC 2002 CLC 166 @ pp.187, 191..

17, General Clauses Act 1897 and Sindh General Clauses Act 1956 were enacted with object to shorten the language used in Federal and Provincial Statutes respectively passed by the respective legislature. Provisions of General Clauses Act, unless a different intention appears in any statute are to be read as integral part of any statute (See section 31 of General Clauses Act 1897 and section 28 of Sindh General Clauses Act 1956). There are two types of statutes one that mandates applicability of subordinate legislative instruments framed thereunder, after publication in the official Gazette and other type do not specifically require publication. Both the situations are catered by Sindh General Clauses Act 1956. First mentioned situations attended by Section 22 ibid, which require draft rules or by-laws to be published, inviting objections thereto, before it is enforced and subject to concurrence of authority, if so required. Second mentioned subordinate legislative instruments are attended by Section 19-A ibid, which necessitate publication of all such instruments in the official Gazette. Regulations framed under section 21-A of Sindh Buildings Control Authority falls in second category of the legislative instruments. Subsection (3) of section 21-A ibid, does not require Regulations framed thereunder to be published, but such is now mandated under Section 19-A read with section 2(41) of the Sindh General Clauses Act 1956 (Sindh Amendment).

Often defence is taken that law does not require publication of any notification, rules and or circular: affecting rights of citizen, such defence is now no more available. Section 2(41) and 19-A of Sindh General Clauses Act, 1956 reads as follows: ' Section 2(41). Notification.--Notification shall mean a notification published under proper authority in the Official Gazette.

' Section 19-A. Rules and orders, etc. To be published.---All rules, notifications, orders, regulations and circulars having the effect of law made or issued under any enactment shall be published in the official Gazette.

' This Court in the case of Cowasjee v. Multiline Associates (PLD 1993 Kar. 237 at 262-263 while placing reliance on Bindra's Interpretation of Statutes and General Clauses Act (a page 561 of 4th edition) held "when an Act enable an authority to make regulations, a regulation which is validly made under the Act i.e, which is intra vires of the authority, should be regarded as though it were itself an enactment". "Therefore, in our opinion the said regulations in the present case have been clothed with statutory authority by virtue of section 21-A of the Ordinance.

18. In this view of matter, SB & TP Regulations 2002 framed by the "Authority" having statutory blessing of section 21-A, SBCO 1979, being delegated legislative instruments, has the effect of law.

As required, under section 19-A read with section 2 (41) of Sindh General Clauses Act 1956, SB&TPR 2002 was published in Sindh Government Gazette Extr. Pt. I, page 388 dated 4th April 2002. Per Regulation 11.2, it came into force at once i.e, on the date of publication. The requirement of publication of any delegated legislative instrument in the official gazette is equally applicable to all amendments made thereunder (one may also see Muhammad Suleman v. Abdul Ghani PLD 1978 SC 190 @ 192B, Muhammad Akram v. Zahid Iqbal 2008 SCMR 1715, Arnjad Mirza v. Deputy Controller of Buildings PLD1983 Kar. 579 19 in the case of Muhammad Ishaq v. Chief Administrator Auqaf PLD SC 1977 639, it was held that legislature never intended to deprive the citizen of valuable rights by merely printing a notification and not giving it proper publication. Notification after printing must be passed on the sales depot and displayed prominently. In Mushtaq Ahmed Khan v. Government of N.-W.F.P. PLD 2000 Pesh. 73; Order confiscating vehicle was passed on 3-4-1999 on the basis of draft rules dated 5th December, 1998. The rules empowering confiscation were notified in the official Gazette on 5-4-1999. Court struck down the impugned confiscation on the ground that notification cannot be enforced retrospectively. In the case of Government of Punjab v. United Sugar Mills Ltd. 2008 SCMR 1148 Court held 'notified order' would mean notification through publication in the official Gazette and not by passing an order and keeping the same in the office of appellant" (One may also refer to Chief Administrator Auqaf v. Amna Bibi 2008 SCMR 1717 para.8 @ 1721). In the case of Saghir Ahmed v.

Province of Punjab PLD 2004 SC 261, apex Court reiterated above principles at page @ 270 para.12 it was held "However we would like to observe that by virtue of insertion of section 20-A in the General Clauses Act 1897 by Ordinance XXXIII of 2002, all Rules, Orders, Regulations and Circulars having the effect of law made or issued under any enactment are being published by the Federal Government in the official Gazette. The Provincial Governments are expected to follow suit so as to inspire public confidence in the policy decisions and to promote the system of good governance and transparency"

20. In the instant case impugned Regulation 25-12.2 was substituted through Notification No,SO (LAND)HTP/KBCA-3/39/2000 dated 29 October 2002, which was published in the Sindh Government Gazette Ext. Part IA, page 32 on 16.10.2008. In view of foregoing discussion, we are of the considered opinion that impugned Notification substituting Regulation 25-12.2, subject to legitimacy, would apply prospectively from the date of its publication in the official Gazette dated 16-10-2008 and not retrospectively from the date mentioned on the title of the Notification.

21. There is wisdom in enacting sections 2(41) and 19-A of Sindh General Clauses Act, 1956 that necessitates publication, in the official Gazette, of subordinate legislative instruments effecting rights, duties and obligations in any manner of any class of persons. The publication of subordinate legislative instrument in the official Gazette would, as held in the case of Saghir Ahmed v. Province of Punjab PLD 2004 SC 261, inspire public confidence in the policy decisions and promote the system of good governance and transparency. (One may also gainfully see Chief Administrator Auqaf v. Amna Bibi 2008 SCMR 1717). Merely issuing a notification without publication in official Gazette and keeping it in the closet shrouded in the secrecy is opposed to public policy and law, otherwise, it would add another tool of oppression in the arsenal of the public functionaries, who may arbitrarily or selectively confer or impinge any privilege, benefit or right of a person at their whims and fancies for extraneous consideration.

22. Adverting to second objection as to competence of the "Authority" to amend SB&TPR 2002 issued in exercise of power conferred under section 21-A of SBCO, 1979.

23. Government of Sindh, under section 4 of SBCO, 1979 has consigned to itself power to appoint, through a notification, any Body Corporate, Council, or any department of such body corporate, Council or Government Department or Functionary or any Organization as an "Authority" . The Chief Executive or in charge of such body corporate, Council, Government Department, functionary or any organization acts as chief executive of the "Authority". Appointment and conferment of power to frame Regulations on the "Authority" under the SBCO, 1979 is only one of its kind. The Authority notified, is known after the name of the area for which it is notified and could sue and be sued in such name. Generally and desirably any "Authority" established or constituted under any statute is a body corporate and juristic person, having perpetual succession, common seal with rights and liabilities and could sue and be sued, many of which attributes are missing in the "Authority" appointed under the SBCO, 1979. We are not called upon nor it is our domain in present petition to examine the wisdom of the legislature to provide such a wide variety of entities that could be crowned as "Authority", such options and choice vesting with the Government gives leverage to the executive for manipulation, exploitation and uncalled for intervention and power play between aspirant contender entities to assume control and wear another hat of "Authority". In fact with every change of the regime there is shifting of preference in appointment of "Authority" by the executive, which has proved to be counter-productive and impendent in consistency of policy and institutionalization of the Karachi Building Control Authority.

24. None of the law officer of KBCA or CDGK was able to provide notifications appointing "Authority" in terms of Section 4 of SBCO 1979. Mr. Anwar, Senior Law Officer KBCA was able to locate and provide copies of Notifications, he was also not sure whether all have been published or not, therefore we can only presume same were duly notified and published for the purpose of instant petition. For lack of permanent body corporate, KBCA is disarrayed and disorganized as there is no centralized, uniform command and control system in place, oscillation of power and functions of KBCA between, vying power brokers, is nothing but disservice to the citizen of this Province. It is high time Provincial legislature may examine and amend section 4 of the SBCO 1979 that may provide for permanent "Authority" as body corporate, having perpetual succession, common seal with rights and liabilities that could sue and he sued.

25. From the copies of Notifications made available, it appears that through (1) first Notification dated 17-3-1979 published on 18-3-1979 KDA was designated as Authority, (2) Second Notification dated 31-5-1979 published on 28-2-1980 superseded first; appointing Master Plan and Environmental Control Department, (MP&ECD) as Authority

(3) Third Notification dated 29-10-1991 superseded MP&ECD by KMC

(4) Fourth notification dated 25-4-1996 again appointed KDA as "Authority" (5) Fifth Notification dated 4-4-2002 crowned 'Housing and Town Planning Department, Government of Sindh, as "Authority" (6) Sixth Notification dated 10-4-2004 Nazim, CDGK was bestowed such "Authority" (7)

Seventh Notification dated 24th April 2008 designated "Minister", Local Government, Kachi Abadis and Sports Development' Department, Karachi as "Authority" for whole of the Province of Sindh, with immediate effect.

26. Mr. Badar Alam, learned counsel for the Petitioner , contended that on the date of publication of the impugned Notification in the official Gazette dated 16th October 2008 Nazim, CDGK was the "Authority", therefore, impugned notification issued by the Secretary, Housing and Town Planning Department; Government of Sindh is without jurisdiction. Argument in the first sight appears to be attractive, when examined carefully was found factually incorrect. On the date borne on the notification i.e, 29th October 2002, charge of the "Authority" vested with Housing and Town Planning Department, Government of Sindh. However, it was published on 16th October 2008, when "Minister", Local Government, Kachi Abadis and Sports Development Department, Karachi was holding charge of the "Authority".

27. As observed above, that the subordinate legislative instruments comes into the force on the date of publication, provided same was issued "under proper authority" (See sub section (41) to section 2 of General Clauses Act, 1956). Thus on the date of Notification dated 29th October, 2002 Housing and Town Planning Department, Government of Sindh, had the legislative competence under Section 21-A of SBCO, 1979 to frame and or to amend the Regulations framed thereunder. The legislative competence of the "Authority" is judged and examined from the date of exercise of power to frame regulation and not from the date of publication of such subordinate legislative instrument. As noted above, a subordinate legislative instrument is effective from the date of publication of notification in the official Gazette and not merely on the date of making it. In this view of matter on 29th October 2002 the date of impugned amended regulation, Housing and Town Planning Department, Government of Sindh, was the competent "Authority". It matters not that same was published later on 16th October 2008 during the tenure of the successor "Authority" i.e, "Minister", Local Government. Very fact that the successor Authority, has taken no exceptions, to the publication of impugned regulations, in the official Gazette, shows that it has the blessing of the successor as well. Therefore, contention of Mr. Badar Alam, that the impugned amended regulation was not framed by the competent authority under facts and circumstances has no force. ,

28. Now adverting to the third limb of the arguments as to vires or validity of the impugned amendment made in the Regulation 25-12.2, which was substituted through Notification No,SO(LAND)HTP/KBCA3/39/2000 dated 29 October 2002, published in the Sindh Government Gazette on 16-1072008.

29. In order to appreciate the contentions of both the learned counsel on the issue, it would be advantageous to examine the scope, intent and purport of SBCO 1979 and SLGO 2001.

30. Preamble is the gateway to any statute; it is bedrock to understand the scope, purpose and object of any statute. It is one of the important gauges to examine vires of rules, regulations and or bye-laws framed under delegated authority. Preamble is to be read with other provisions of the statute to examine intra vires or ultra vires of rules, regulations or bye-laws framed thereunder.

31. To discover object, scope and purpose of SBCO, 1979 let's glance at the preamble which runs .As follows: "Whereas it is expedient to regulate the planning, quality of construction and building control, prices charge and publicity made for disposal of buildings and plots by builders and societies and demolition of dangerous and dilapidated buildings in the Province of Sindh.

32. We could do no better than quote from Zaheer Ahmed Chaudhry v. CDGK 2006 YLR 2537 wherein Justice Mujeebulalh Siddiqui, J as he then was, speaking for the Bench ably summarized and defined the scope of the SBCO 1979 at page 2570 as follows: ' Sindh Building Control Ordinance, 1979 was promulgated to regulate the planning quality of construction and building control. Matters pertaining to building control and town planning being entirely distinct and separate, scope of Sindh Buildings Control Ordinance, 1979 was confined to the approval of building plans, demolition of the buildings, quality of the buildings, supervision of the construction of the buildings, matters pertaining to the safe and sound construction, structural design of the buildings, grant of license to architects, building designers, structural engineers, town planners, builders and developers and the matters ancillary and incidental thereto and was not extended to the matters pertaining to the town planning and did not include the land use classification, density standards, construction of roads and streets development plans, zoning regulations, etc. (Underlined to add emphasis)

(For more discussion on scope of SBCO 1979 one may refer to KBC Authority v. Hashwani S & S Ltd PLD 1993 210 paras. 9 and 10 @ page 219-220).

33. By virtue of section 21-A ibid the "Authority" has been delegated power to frame Regulations within the parameter of SBCO, 1979 and rules framed by the Government of Sindh, so far no rules have been framed by the Government of Sindh, Section 21-A ibid, reads as follows: "21-A. Regulations.---(1) The Authority may, frame Regulations not inconsistent with the provisions of this Ordinance and the rules made thereunder, for carrying out the purposes of this Ordinance.

(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for--

(a) the recruitment, tenure of office, terms and conditions of service of the officers, advisers, experts, consultants and employees appointed by the Authority and disciplinary action against them (section 4-A).

(b) the manner of approval, grant of no objection certificates to builders or developers and rates of fees therefor (sections 6 & 7).

(c) the manner of grant of occupancy certificate and fees therefor (section 6(2).

(d) the manner of attestation of documents or information;

(e) the manner of preparation, supervision and submission of building plans; (section 7).

(f) the qualifications, manner of grant and terms and conditions of and fees for licenses to architects, building designers, inspecting engineers, inspecting architects, building supervisors, structural engineers or town planners and regulation of their functions and remuneration; (section 8).

(g) the manner of grant and terms and conditions of license to builders or developers and fees for such licenses; (section 9)

(h) procedure for cancellation of transfer or sale; the details of the building or plot required to be mentioned in the advertisement for its sale by the builder or developer, as the case may be ; (section 12).

(i) rates of fees for supplying copies of any document or information;

(j) terms and conditions of compounding of offences; (section 19(1-A), (1-B) 7 (1B).

(k) rates of interest payable under this Ordinance (Section 15).

(3) The Karachi Building and Town Planning Regulations, 1979, in the case of the Authority of Karachi and the bye-laws of the council concerned in other cases, duly published shall until the regulations are framed under this section, be deemed to be the regulations, not framed; provided that they are not inconsistent with the provisions of this Ordinance and the rules framed thereunder

34. On reading above, it is clear that for the purpose of giving effect to the provisions of SBCO, 1979 including subject enumerated in clauses (a) to (1) above, Section 21-A ibid empowers the (Sindh Building Control) "Authority"; to frame Regulations, witnin the confine and restraint of SBCO 1979, indeed the power to frame regulations under subsection (2) of section 21-A as enumerated therein are not exhaustive but illustrative; this does not, however mean that delegated powers to frame the regulations are unfettered. The "Authority" while framing Regulations cannot travel beyond the purview of the parent statute or rules framed thereunder. Subsections (1) and (3) of Section 21-A ibid puts double fetters on the Authority to remain within prescribed bounds while exercising power to frame regulations. The "Authority" "may, frame Regulations not inconsistent with the provisions of the Ordinance and the rules" and while framing regulation should ensure"that they are not inconsistent with the provisions of this SBCO 1979 and the rules framed thereunder". Subordinate legislative instruments, which includes rules, regulations and bye-laws are the vehicles through which object of a astute is carried forward and implemented. Therefore, in order to effectively carry out the purpose of any enactment, subordinate legislative instruments enacted under whatever nomenclature or title must have rational correlation with object and scheme of the enabling statute. Rules, regulations and bye-laws are offspring of statute, must carry the gene of parent statute; meaning thereby that it must be in conforming with the object and scheme of the parent or enabling statute. Once it is shown that any Rule, Regulations or bye-law framed thereunder, or any amendment thereto, travels beyond the scope and ambit of the parent statute, it loses protection of parent statute and will not withstand the challenge of legitimacy in the Courts of law.

35. Arguments in instant matter were heard at length on 28-10-2009, while penning down the judgment, some doubts were entertained. To resolve the doubts as to implication and application of Regulation 25-12.2 vis-a-vis conversion of residential plot into CNG Station, implication and application of Regulation 18 of KB&TP Regulation 2001, which seems to be in excess of the delegated authority under section 21-A of the Karachi Buildings Control Authority 1979. Matter was fixed in Court on 24-2-2010 and on 10-3-2010 counsel were heard again on the issue of vires of the impugned Regulation No,25-12 and Regulations 18 of KB&TP Regulations 2002.

36. Now examining the vies of the impugned amended Regulation 25-12.2, KB&TPR 2002. Petition was filed on 7-8-2008, private Respondents 6 and 7 in their counter affidavit placed reliance on the substituted regulations, made through unpublished Notification. Petitioner instantly questioned its vires in "affidavit in rejoinder" filed on 16-9-2008.To meet the challenge of the petitioner, impugned Notification was got published on 16th October 2008 and placed on record. With the permission of the Court, Petitioner filed the amended petition 7-11-2008, challenging vires of subject notification.

37. strong presumption as to constitutionality, legislative competence, legality, reasonableness and intra vires attached to a statute is also attached with full force to subordinate legislative instruments as well, such presumption though refutable, onerous burden is cast on person challenging validity or vires of legislative instrument, on any count. In order to strike down a subordinate legislative instrument, challenger has to show that any of the disqualification exist namely (a) it impinges fundamental rights guaranteed under the Constitution (b) it is in conflict with any Constitutional provision (c) it is beyond the legislative competence of the delegate making it, and or (d) it is violative or beyond the scope of the parent or enabling statute. (see KBCA v Hashwani Sales and Services Ltd. PLD 1993 SC 210 @ 228 C, Maharashtra State Board of Secondary Education and Higher Secondary Education and another v. Paritosh Bhupesh Kurmarsheth AIR 1984 SC 1543).

38. Impugned Regulation No,18-12.2, reads as follows: ' CNG station can be installed on commercial or industrial or residential plot after following the due procedure for conversion, and after payment of charges as may be prescribed by the CDGK provided that the conversion shall be done after calling public objections and with approval of MPG() (words in bold and italic "or residential plot" have been inserted through impugned regulation gazetted on 16-10-2008).

' Contentions of Mr. Badar Alam, that through impugned amendment, KBCA has been conferred authority or jurisdiction to allow conversion of residential plot into CNG station; it amounts to change in land use, which ' beyond the scope of SBCO, 1979. According to him, change in land use is regulated under the SLGO, 2001 in terms of section 39(a) and (c), 40(a) read with section 192(1) thereof. It was argued that pursuant to power enabling CDGK in this regard through Resolution No,383 dated 6-1-2004, approved "Change of Land Use and Master Planning - 2003 Bye-Laws- 2003". It was argued that it is jurisdiction and authority of concerned Zila Council, CDGK to approve Master Plan, Zoning, Land use plan including classification and reclassification of land, environment control, urban design, urban rural and ecological balance as such Housing and Town Planning Department or any other authority cannot usurp power and assume the functions and authority of Zila Council.

39. On careful perusal of the impugned regulation it appears that before the impugned amendment CNG station could not be installed on commercial or industrial plots, after the change through amending regulation now CNG station could also be installed on residential plot as well, such permission is however qualified. Per impugned Regulation Installation of CNG station on residential plot is qualified after following the due procedure for conversion, and after payment of charges as may be prescribed by the CDGK and further the conversion may be permitted after calling public objections and with approval of MPG() and not other wise. Therefore, it is wrong to assume that conversion of any property or change in land use could be carried out pursuant to impugned Regulation 25-12.2 of KB&TP Regulations 2002. The impugned Regulation provides that for the purposes of conversion of residential or for that matter commercial or industrial plot into CNG Station "due procedure for conversion" is to be followed 'as prescribed by the CDGK', Since impugned regulation does not regulate conversion of land use, therefore not ultra vires the Sindh Buildings Control Ordinance, 1979. Impugned Regulation 25-12.2 of KB&TP Regulation 2002, for the purposes of conversion of three categories of plot mentioned therein, falls back on "due procedure for conversion" of residential plot into CNG Station "as prescribed by the CDGK", which procedure is laid down in "Change of Land Use and Master Planning Bye-Laws-2003, as Gazetted on February 12th 2004.

40. Merely by virtue of fact that, a plot is industrial, commercial or residential ipso facto will not qualify for the installation of CNG Station. Regulation 25-12.2 provides that before a person seeks to install a CNG Station on industrial, commercial or residential plot, he has to follow "due procedure for conversion, and after payment of charges as may be prescribed by the CDGK". Such conversion has to further qualify two riders under the impugned Regulation, firstly that the conversion shall be done after calling public objections and secondly with approval of MPGO. In Works Cooperative Housing v. Najma Salim, PLD 2000 Kar. 36, it was held that the provisions of Section 6 of the Sindh Buildings Control Ordinance, 1979 does not empower the (KBC) Authority to grant or withhold permission for change of use of plot as residential, commercial or industrial, which is a prerogative of the lessor (It is CDGK in instant case).

41. Under Regulation 1-4 The Government delegated to the "Authority", Master Plan Group of Officers

(MPGO) and to the "Concerned Authority" listed in Schedule 1A, the powers and duties assigned by Regulations framed under the SBCA Ordinance, 1979. In the Schedule 1A, at. Serial No,1 City District Government is listed as "Concerned Authority" exercising jurisdiction over area within its jurisdiction other than those under the jurisdiction of other public agencies.

42. As noted in para 30 above with reference to Zaheer Ahmed Chaudhry v. CDGK 2006 YLR 2537 at page 2570 it was explicitly held that the 'scope of Sindh Buildings Control Ordinance, 1979 was confined to the approval of building plans, demolition of the buildings, quality of the buildings, supervision of the construction of the buildings and was not extended to the matters pertaining to the town planning and did not include the land use classification, density standards, construction of roads and streets development plans, zoning regulations, etc. When the parent law i.e, Sindh Buildings Control Ordinance 1979 does not provide for matter relating to change in land use classification, or conversion of one category of land into another it cannot through delegated legislative instrument confer, bestow or delegate any power and duties on "Concerned Authorities", which powers and performance of duty are not within its own domain or scope of authority. It is settled principle of law that what cannot be done directly cannot be done or allowed to be indirectly. It is also trite principle of law; what is not possessed can neither be conferred nor delegated.

43. Now examining what is 'due procedure' for conversion of subject residential plot into CNG station, prescribed by KB&TP Regulations and whether CDGK has to follow the procedure of conversion as laid down under the Regulations or as prescribed and mandated under the Sindh Local Government Ordinance 2001 (SLGO, 2001). Under Section 39 of the SLGO, 2001 the Union Council is responsible amongst other functions to approve bye-laws proposed by the District Government under this Ordinance (i.e, SLGO, 1979). Under Section 40 of the SLGO, 2001 the CDGK is empowered to carry out approved master plan, zoning, land use plans, reclassification of land, environmental control, urban design, urban renewal and ecological balance all matters come within the purview of City District Council said provisions reads as follows; Section 40: Functions of Zila Council in a City District.--In addition to the functions specified in Section 39, the Zila Council in a City District shall perform the following functions namely:

(a) approve master plans, zoning, land use plans, including classification and reclassification of land, environment control, urban design, urban renewal and ecological balance;

(b) review implementation of rules and bye-laws governing land use, housing markets, zoning, environment, roads, traffic, tax, infrastructure and public utilities;

(c) approve proposals of the District Government for public transport and mass transit systems, construction of express ways, flyovers, bridges, roads, under passes, and inter-town streets;

(d) approve development schemes for beautification of areas along river, beaches and sea sides, and .

(e) review development of integrated system of water reservoirs water sources, treatment plants, drainage, liquid and solid waste disposal sanitation and other municipal services.

44. In order to implement above provision, and in exercise of powers under Section 192 (2) read with 5th Schedule Part II Clause-3 of the SLGO, 2001 (i.e, Zoning master planning and building) the City District Council through Resolution 383 dated January 16th 2004, approved the "Change of Land Use and Master Planning Bye-Laws 2003", which was Gazetted on February 12th 2004.

45. Under the bye-law No,9 a committee comprised of seven members is constituted to decide matter relating to Master Plan and change of land use as per applicable rules and procedures. The Committee holds sessions after every two months to consider and decide matters relating to master plan, change of land use the decision of the Committee is placed before the District Council. The Committee may recommend to the District Council change of land use in any area or on any road. In event of difference of opinion between the Committee and the MPGO, Nazim CDGK resolves the differences.

46. The City District Council on the recommendation of the Committee, through resolution No,659 27-6-2005 approved commercialization of Khayaban-e-Roomi, Nishtar Road and Alimgir Road.

The City District Council has not yet approved commercialization of the road on which the subject property is situated.

47. Even taking a charitable view, as per Bye-Law No,3-i application on prescribed form for the change of land use is to be made both to the concerned Union Council as well as to the MPG() along with public notices on prescribed format in two newspapers inviting objections against the proposed change of land use. The Union Council may accept or reject the application. The concerned Union Council is required to fix the date of public hearing after notifying the date to the applicant , MPGO and the objector, if any. The Union Council, after hearing the applicant, authorized representative of MPG() and the objector, may either allow or reject the application. In case of acceptance, Union Nazim issues NOC.

48. Examining the instant case, respondents, No,6, owner of plot No,E-20, Block F, Scheme No,2 North Nazimabad, Karachi measuring 1768 square yards claimed that they followed KB&TP Regulations 18-3.1 and 18-3.1.4 to seek bifurcation of subject plot into plots measuring 1168 square yards renumbered as E-20 and plot measuring 600 square yards numbered E-20/1. It is further admitted by the said respondents 6 and 7 in the counter affidavit while giving brief history of the plot and its conversion in paragraph ll and E that for the conversion Regulation 25-12.2, 25-12.8 and 25-12.14 and for the bifurcation Regulations 18-3.1.4, 18-3.1.3 and 18-3.1.4 of KB&TP Regulations 2002 were followed and subject plot was bifurcated into plot No,E-20 measuring 600 square yards, (50X 108 Sq.Ft). According to them bifurcated plot was rightly converted into Plot for CNG Station. It is indeed questionable whether in exercise of powers under the KB&TP Regulations, 2002 plot could be bifurcated. As per Regulations 18-3.1.1 sub-division of any residential, commercial and industrial plot could only be allowed by the "Concerned Authority", the Concerned Authority is "Zila Council", under section 40(a) of the SLGO, 2001. In the instant case, subdivision was allowed by the purported competent authority i.e, MPGO as per NOC issued by the DDO (Sch-2), Land Management, CDGK on 26-11-2007, on specific undertaking of the respondent No,6 `that plot will be utilized as per original allotment/lease condition (annexure B to the C/A filed by the respondent Nos.6 & 7.)

49. From perusal of the purported NOC issued by the DDO (Sch-2, Land Management, CDGK dated 17-11-2007 for the sub-division of the plot, clause 7 thereof reads "As per undertaking dated 24-10- 2007, submitted by the owner/applicant on stamp paper stating that after the sub-division of the above mentioned plot will be utilized as per its original allotment Conditions/Lease Conditions and it shall not be constructed/used as flat site/town house or commercial structure/use". On violation of said condition and misrepresentation sub-division is liable for cancellation. Even the Challan dated 19-5-2008 issued shows that the plot is residential. The lease condition 11 of the subject property also carried restrictive covenant binding the lessee "not to use the demise plot or any building or structure thereon or suffer the same to be used for any purpose or in any manner which may be a nuisance to the lessor or the occupier of the adjacent or other premises in neighborhood". Under the 'Change of Land Use and Master Planning Bye-laws-2003", public hearing is required to be given by the concerned Union Council, whereas, in instant case, there is nothing on record to show any public hearing was given by the concerned Union Council. Record shows that the purported hearing was given by DDO (PP & CNG) on 16-4-2008. (Annexure P/7).

50. On examining the impugned conversion of subject residential Plot granted by the DDO, through impugned order dated 25-4-2008 Annexure-P/7 to the memo of petition (at page 51), which reads as follows; "In hearing on 16-4-2008 regarding subject-matter both parties were heard in detail. It was informed to the complainant that the applicant has completed all codal formalities according to the Karachi Building & Town Planning Regulations-2002 amended to-date for Installation of CNG Station on Plot No,E-20, Block-F North Nazimabad, Karachi.

' The District Officer, MPGO directed to the applicant that the distance of 28 feet +10 feet C.O.S. = 38 feet between the construction of CNG Station and the boundary of the plot No,E-2, Block-F, of the complainant should be left.

' Safety measures as per Rules of the Civil Defence and Explosive Department shall be taken by the respondent."

' DDO (PP&CNG) MPGO, CDGK

51. It is matter of record that impugned Notification No,SO.(LAND) HTP/KBCS 3-39-290 dated 29-10- 2002 amending Regulation 25-12.2 KB&TPR 2002, on the basis of which conversion is allowed was not even gazetted, it was gazetted much after the filing of the petition on 16-10-2008. Purported sub-division was allowed by the MPGO as per NOC issued by the DDO (Sch-2), Land Management, CDGK on 26-11-2007, on specific undertaking of the Respondent No,6 "that plot will be utilized as per original allotment/lease condition. MPG() was not the competent authority to allow bifurcation and or sub-division of the Plot. Provisional license to operate CNG Filling Station dated 27-6-2007 was granted to the respondent No,7 by the OGRA annexure "L" to the Counter Affidavit filed by the respondent No,6, clearly contained a restriction No,2 "The CNG Station will not be located in the residential area". Admittedly subject plot is situated in purely residential area. The Provisional Licence from OGRA was obtained much before the purported conversion of residential plot, through impugned order dated 25-4-2008 by the DDO. DDO concerned not only failed to consider above aspect but also conveniently over sighted Regulation 18.5, which provides that conversion of residential plot into commercial shall be allowed only according to uniform commercialization policy formulated and revised from time to time by the MPGO with the approval of the Government and notified in Sindh Government Gazette on the basis of comprehensive study of various urban area under pressure for commercialization. Individual plot outside the policy will not be considered for commercialization. There is nothing on record to show that any uniform commercialization policy has been formulated by MPGO and approved by the Government of Sindh. From the record it is evident that subject plot is the solitary residential plot that has been converted into CNG station.

Conversion of residential plot into another category of CNG station is nothing but commercialization, this view is supported by Regulation 19-2-2.6. (g), which classify petrol station and CNG Station as commercial (trade) use. Therefore contention of Mr. Manzoor, learned counsel of the CDGK as recorded in the narrative paragraph 11 above, that conversion of residential plot into CNG Station is not commercialization is not sustainable.

52. Impugned conversion or NOC clearly manifest that the hearing was merely illusory as the DDO merely informed the complainant that the applicant has completed all codal formalities according to the Karachi Building and Town Planning Regulations-2002 amended to-date for Installation of CNG Station on Plot No,E-20, Block-F, North Nazimabad, Karachi. From the impugned order it appears that neither Authorized officer of MPGO attended the hearing, nor the concern of the petitioner detailed in the objections dated 3-12-2007 were addressed; even it was not considered that at the relevant time conversion of Residential property into CNG was not permissible as per regulation in force, impugned regulation 25-12.2 adding "residential" was Gazetted on 16-10-2008 much after filing of the petition. Even otherwise Regulation 25-12.2, is not the substantive regulation governing the conversion of one category of the plot into another. Provisional permission to operate CNG Filling Station issued by the OGRA on 27-6-2007 does not permit operation of CNG Filling Station in the residential area. DDO did not consider that the purported sub-division dated 26-11-2007 issued by DDO (Sch-2), CDGK, records undertaking of the respondent No,6 that "it shall not be constructed/used as flat site/town house or commercial structure/use" and further more sub-division was done by incompetent authority i.e, MPGO . Under Regulation 18-3-1.1 it is clearly provided that sub-division of any residential, commercial or industrial plot shall be allowed by the "Concerned Authority". Concerned Authority and the CDGK is the "Concerned Authority" as per Schedule A-1 to Chapter 1 of the KB&TP Regulations, 2002, CDGK under the SLGO 2001 confers the authority on Zila (District) Council under Section 40 (a) of the SLGO, 2001. All such facts show that impugned permission dated 25-4-2008 for conversion of residential plot into "CNG Station" was granted by DDO, MPG() mechanically with a predetermined notion and without conscious application of mind to the facts as stated herein.

53. From all the material produced by the petitioner and respondents it appears that sub-division, conversion of the residential plot into "CNG Station" has been carried out under the KB&TP Regulations 2002 and not under the "Change of Land Use and Master Planning Bye-Laws, 2003" framed under SLGO, 2001 which is the governing substantive law relating to change in land use, which include sub-division and conversion of one category of plot into another. NOC by the TMA NorthNazimabad dated 18-12-2007 was issued as no objections were received by them. It may be observed that as per bye-laws 3-2 and 3-3 of the "Change of Land Use and Master Planning Bye- Laws-2003" on expiry of the period inviting objections the concerned Town Administration is required to hold public hearing, in which the concerned officer of the Master Plan, is also required to attend the hearing along with the objections received, which exercise admittedly was not carried out. In short "Change of Land Use and Master Planning Bye-Laws 2003" were neither invoked nor at all adhered to. There is nothing on record to show that the Committee constituted under Bye Law 9 ibid has approved any change in master plan of the area, change of land use, which in turn is required to be placed and approved by the District Council.

54. In view of the foregoing discussion regulations contained in Chapter 18 of the KB&TP Regulations, 2002, not being substantive law regulating land use plan, classification and reclassification of land. It is only Zila (District Council) in terms of Section 40 of the Sindh Local Government Ordinance, 2001 competent to approve master plans, zoning, land use plan, including classification and reclassification of land, environment control, urban design, urban renewal and ecological balance. Therefore, Chapter 18 of the KB&TP Regulations, 2002 cannot be invoked for sub-division, amalgamation and or for change of land use, therefore, use of such power or the procedure provided therein travels beyond the scope and ambit of Sindh Buildings Control Ordinance, 1979 as conferred under Section 21-A of the SBCO, 1979.

55. It may be observed that "Change of Land Use and Master Planning Bye-Laws 2003" are too sketchy and lack scientific basis, essential and fundamental requirement needed for urban city planning and designing. It is desirable pressing need and as mandated under sections 39 and 40 of the SLGO, 2001 Zila (District) Council in a City District Government, approve bye-laws in respect of matters pertaining to 'master plans, zoning, land use plans, including classification and reclassification of land, environment control, urban design, urban renewal and ecological balance; review implementation of rules and bye-laws governing land use, housing markets, zoning, environment, roads, traffic, infrastructure and public utilities. Comprehensive rules on the designated subject are required to be framed on modern and scientific lines and so also in consonance with the provisions of Environmental protection Act, 1997.

56. In view of the foregoing discussion impugned permission dated 25-4-2008 (annexure F to the Petition) allowing conversion of a portion of residential plot No,E-20, Block F, Scheme No,2 North Nazimabad, Karachi into CNG station issued by the Respondent No,3 DDO (PP & CNG) is declared to be without lawful authority and of no legal effect. Conversion and change in land use could only be resorted to under the provisions of Land Use and Master Planning Bye laws 2003 framed under the SLGO, 2001 and not under the KB&TP Regulations 2002 framed under Sindh Buildings Control Ordinance 1979. Therefore, respondents No,6 and 7 are permanently restrained from establishing a CNG Station over the subject residential plot. Looking at the serious questions involved there shall be no order as to cost. Parties to, bear their own cost.