SAJJAD ALI SHAH, J.---The petitioner through this petition has challenged the conversion of a residential plot into commercial and construction of a multistorey residential-cum-commercial building thereon.
' Briefly, the petitioner who claims to be the owner of House No,122, Block-III, Bahadur Yar Jang Cooperative Housing Society, Karachi situated in a pure residential area states that in the month of October, 2008, the respondents started excavation on Plot No,111, admeasuring about 1023 square yards, adjoining the plot of the petitioner by establishing its Head Office with the intention to raise a multistorey residential-cum-commercial building on a residential plot. The petitioner at that particular time was out of country and on her return came to know that the respondents Nos.9 and 10 have illegally obtained conversion of land use in respect of their aforesaid plot without following proper procedure by taking advantage of Resolution No,659 dated 27-6-2005 whereby City District Council has unlawfully permitted change of land use on 4 roads including Alamgir Road where the subject property is situated. Hence this petition with the following prayers:---
(a) Issue writ declare that the City Council Resolution No,659 dated 27-5-2005, by which the respondents Nos.2 & 3 reportedly gave permission for conversion of use of Plot No,111, Block No,3, Bahadarabad, Karachi, as contained in letter of respondent No,3 dated 5-7-2007, is patently illegal, mala fide, based on dishonesty and fraud, besides the entire conversion is without any proper jurisdiction and authority, as well as in gross violation of Karachi Town Planning and Building Regulations, 2002, 2003, 2004, 2005, 2006 as well as the fundamental rights of the petitioners, hence the same is nothing but a Nullity in the eyes of law, besides being ultra vires and void.
(b) Issue writ declare that the construction plan accorded by the Respondent No,4 vide its letter dated 23-9-2008 for construction of a high rise commercial building consisting of about 15 floors, is also patently illegal and in gross violation of the Karachi Building Control Authority Ordinance, 1979, as well as the Karachi Town Planning and Building Regulations, 2002, 2003, 2004, 2005, 2006 as well as the fundamental rights of the petitioners, hence the same is nothing but a mullity in the eyes of law, beside being ultra vires and void.
(c) Consequently, this Hon'ble Court may further be pleased to order for cancellation/recalling/ revoking of the NOC for conversion dated 5-7-2007 issued by respondent No, 3 and approval of construction plan dated 23-9-2008 accorded by the respondent No,4.
(d) Issue writ declare that the construction being raised, as well as the booking/selling out of the shops, show rooms and flats in the proposed high rise 15 floor building of respondents Nos. 9 and 10 are in gross violation of the Environmental Protection Act, 1997, hence the respondent No,5 shall be directed to take appropriate legal action against the respondents Nos. 9 and 10 according to law.
(e) Direction be issued to the official respondents Nos. 1 to 8 to cancel the lease of Plot No,111, Bahadurabad, Karachi, due to gross violation of the terms and conditions of the lease deed, whereafter the same plot should be auctioned by the respondents Nos.6 and 7 in accordance with law with the specific undertaking from the proposed buyer not to commit any violation of the lease.
(f) Permanently restrain the respondents Nos. 9 and 10 or any person or persons for, under or on their behalf including (without limitation) its servants, employees, agents, attorneys / partners/ Directors or officers from allowing, raising, continuing or completing any construction on Plot No,111, Bahadurabad, Karachi (including without limitation, the building presently under construction) that is in violation of or contrary to the statutory and regulatory provisions or is in violation or in derogation of the petitioners' right.
(g) Permanently restrain the respondent No,4 or any person or persons acting for, under or on its Behalf including (without limitation) its servants, employees, agents, attorneys or officers from applying for, pursuing or seeking to compound or seeking or obtaining any similar relief in respect of any construction on the said Plot No,111, Bahadurabad, Karachi (including without limitation, the building presently under construction) that is in violation of or contrary to the statutory or regulatory provisions or the rights of the petitioners;
(h) Issue a mandatory injunction against the respondents, specially the official respondents Nos.1 to 8, directing them to demolish any construction on the said Plot No,111, Bahadurabad, Karachi, that is in violation of or contrary to the statutory and regulatory provisions or the rights of the petitioner and failing that to authorize any officer of this Court and direct the respondent No,4 to carry out demolition of any such construction in any manner as deemed appropriate by this Hon'ble Court.
(i) Permanently restrain the respondents Nos. 9 and 10 or any person or persons acting for, under or on their behalf including (without limitation) its servants, employees, agents/ partners/ directors, attorneys or officers from selling or attempting to sell, allotting, leasing, assigning or in any manner whatsoever dealing in or disposing off or creating any third person/parties interest whatsoever in respect of any construction on the said Plot No,111, Bahadurabad, Karachi '(including without limitation, the building presently under construction) or any party thereof that is in violation of or contrary to the statutory or regulatory provisions or from accepting any money from the public in respect of the foregoing.
(j) Issue writ declare that the respondents Nos. 9 and 10's Building Plan or any other plans or drawings purportedly approved for the said Plot No,111, or any other approval, permission, consent, sanction, recommendation or relaxation whatsoever granted, to be granted or purported to be granted in respect of constructing a multi-cum-commercial building on the said Plot No,111, or allowing or purporting to allow the said Plot to be used for purposes other than the construction of a Ground plus one residential bungalow is void, illegal and of no lawful effect.
(k) Issue writ declare that the respondent No,2 and its City Council has no power to change the use of the plot and so also convert the residential plot into commercial. Furthermore, has no power to interfere in the statutory duties of C.D.G.K. (KDA Wing) and Karachi Building Control Authority.
(l) Issue writ declare that the approval of change of use/ commercialization of Plot No,111, Bahadurabad, Karachi is illegal, void ab initio, without jurisdiction, unconstitutional and is liable to be set aside.
(m) Permanent injunction directing respondents Nos. 1 to 8 not to issue any NOC for providing any amenities i,e, electricity, gas and water to the respondents Nos. 8 and 9 on the suit plot No,111, Bahadurabad, Karachi.
(n) Permanent injunction directing the respondents Nos. 1 to 8 strictly adhere to the traffic rules and bye laws in respect of suit property. Without prejudice to the foregoing, in addition to and/or in the alternative.
(o) Pass the order against the respondents Nos. 9 and 10 exclusively and direct the respondents Nos. 1 to 8 to attach the illegal construction and demolish the illegal structure thereon.
(p) grant costs of the proceedings.
Mr. Khawaja Shamsul Islam learned Counsel appearing for the petitioner has contended that the City District Council B had no power to change the use of a residential plot to commercial and therefore, not only Tajviz No, 3 dated 12-2-2004 whereby commercial construction on 11 roads was allowed by the City District Council but the Resolution 659 dated 2-6-2005 whereby in line of said Tajviz change of land use on four more roads including the one on which the respondents Nos. 9 and 10 are raising construction was allowed are totally illegal, void and of no consequence. It was further contended that since Sindh Local Government Ordinance, 2001 (hereinafter referred to as "the Ordinance 2001") from which the City District Government of City District Council derives power does not permit change of land use, therefore, the provisions of commercializing provided in Bye Laws 2003 which are framed under section 192 of the Sindh Local Government Ordinance are ultra vires and therefore, entire commercialization in consequence of the bye-laws of 2003 is void ab initio and is liable to be declared as such. Per learned counsel, the petitioner before such commercialization was not put to proper prior notice enabling her to object and oppose such commercialization which has not only substantially damaged the property of the petitioner but has made it inhabitable for residential purposes. Learned counsel by placing reliance on Regulations 18-4.2 to 18-4.2.7 of 2002 has contended that the procedure provided for conversion has not been followed so far as approval of MP&ECD nor the so-called commercialization was in consonance with Regulation 18-5,2 which requires conversion of residential plots into commercial by via a uniform commercialization policy formulated by Master Plan and Environmental Control Department with the approval of Government by notifying it in the official Gazette. It was next contended that the decision of the respondents to vary Town Planning by allowing the construction of a commercial building on a residential plot has caused disturbance of Easementary Rights such as privacy, light and air and has further violated the Fundamental Rights of the petitioner guaranteed under Article 9, 14, 23, 24 and 25 of the Constitution of the Islamic Republic of Pakistan and therefore, cannot be acted upon. Further that a ramp has been constructed on compulsory Open Space and such violation is not compoundable and even if the entire process of Commercialization is held valid still the ramp is liable to be demolished.
' It was lastly contended that the respondents by raising construction without obtaining permission from the Environmental Protection Agency have further violated section 12 of the Environmental Protection Act. In support of his contentions learned counsel has placed reliance on the following judgments of this Court as well as of the Apex Court:-
(1) 1990 CLC 83 (Mst. Sardar Begum Faruqui and 6 others versus Rashida Khatoon and 2 others).
(2) PLD 1992 Lahore 462 (National Industrial Cooperative Credit Corporation Limited and another v.
Province of Punjab/Government of Punjab).
(3) PLD 1994 SC 512 (Abdul Razak v. Karachi Building Control Authority).
(4) PLD 1995 Supreme Court 530 (Zahida Akhtar v. Government of Punjab).
(5) 1999 SCMR 2883 (Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority).
(6) 2006 YLR 2537 (Zaheer Ahmed Chaudhry and 9 others v. City District Government, Karachi).
(7) PLD 2007 Supreme Court 472 (Jawad Mir Muhammad and others v. Haroon Mirza and others).
' On the other hand Mr. Sardar Shehbaz Ali Khan Khosa appearing for respondents Nos.9 and 10 viz owner of Plot No,111 and Builder respectively has contended that City District Council vide Resolution 659 dated 27-06-2005 has made addition in Tajviz No,3 (whereby change of land use was permitted on 11 roads) by declaring change of land use on four other roads viz, Khayaban-e-Saadi Road, Khayaban-e-Roomi Road, Nishter Road and Alamgir Road and such Resolution was duly notified in the Official Gazette dated 6-10-2005. The respondents taking benefit of such commercialization applied for change of land use of their plot from residential (shops cum- offices-cum-flats), Per learned counsel to start with, objections were invited by the CDGK from the public at large by publicizing the respondent No,9's. Application seeking permission for change of land use in Daily "Times" and "Jassarat" both dated 18-12-2006 and since no objection for such conversion were received by the CDGK, therefore, the respondent No,9 proceeded with the process paid a sum of Rs.30,69,000 to the Bahadur Yar Jang Cooperative Housing Society Limited as Commercialization Fee and upon payment of such fee the Society, vide their letter dated 3-3-2007, recommended the case of the respondent No,9 along with proposed commercialization plan to the Master Plan Group of Officers. The respondent No,9, thereafter paid a sum of Rs.10,23,000 to Karachi Cooperative Housing Society Union Limited who also accorded their approval for such change and recommended commercialization of the said plot vide their letter dated 10-4-2007. Thereafter the Union Council, Civic Centre, Gulshan-eIqbal Town also accorded their approval for such commercialization vide their letter dated 11-4-2007 and conveyed the same to Master Plan Group Offices, C.D.G.K. Ultimately Master Plan Group Offices intimated the respondent No,9 vide their letter dated 4-5-2007 that the process of commercialization has been completed and the respondent No,9 was directed to pay a sum of Rs.81,84,000 as conversion fee and a further sum of Rs.1,02,300 as TPS fee which was duly paid by the respondent No,9 on 3-7-2007 and ultimately permission for such commercialization was accorded by City District Government Karachi Master Plan Group of Offices on 5-7-2007. Based on such permission Government of Pakistan, Ministry of Housing & Works also accorded their no objection for commercialization of a residential plot vide its letter, dated 6-10-2007 upon payment of usual fee. The respondent No,9 thereafter submitted its proposed commercial building plan through Bahadur Yar Jang Cooperative Housing Society which was forwarded to the Karachi Cooperative Housing Societies Union Limited upon payment of Rs.9,50,700. The respondent No,9 further paid a sum of Rs .5,11,500 to Karachi Cooperative Housing Societies Union Limited who upon payment of Rs.17,49,716 accorded architectural concept approval vide their letter dated 6-2-2008 for ground plus 13. The KBCA further vide their letter dated 22-3- 2008 accorded their no objection for and advertising the Show Rooms and Residential Flats to be constructed on the subject plot in the name and style of "The City Tower" and ultimately KBCA vide letter dated 23-9-2008 approved the building plan with the permission to carry on construction.
Learned counsel has further placed on record sale publicity of the project in daily Jang, dated 19- 4-2008, 20-4-2008, 23-4-2008, 26-4-2008, 27-4-2008, Daily News dated 19-4-2008, 23-4-2008, 20- 4-2008, Daily Dawn dated 20-4-2008, daily Awam dated 19-4-2008, 23-4-2008, 27-4-2008, Daily Kawish dated 4-5-2008 in order to urge that the construction of the project was duly publicized and the petitioner had due notice and was fully aware and at present construction up to five floors has been raised, therefore, this petition suffers from laches.
' As to the powers of the City District Government to convert the land use Mr. Khosa as well as Mr. Manzoor Ahmed for the City District Government Karachi have contended that City District Government has been established through a mandate as provided under Article 140-A of the Constitution of the Islamic Republic of Pakistan, 1973 which requires that each province shall establish a Local Government System and devolve political, administrative and financial responsibility and authority to the selected representatives of the Local Government and section 3 of the Sindh Local Government Ordinance by which the Local Government is to be governed provided that the provisions of Ordinance 2001 shall have effect notwithstanding anything contained in any other law for the time being in force. Per learned counsel subsection (xvi) of section 2 of the Ordinance 2001 defines Local Government which includes a District Government or a City Government and Zila council. It was next contended that section 40 of the Ordinance, 2001 provides Functions and Powers of Zila Council, of a City District and clause (a) whereof permits classification and reclassification of land use. It was next contended that section 192 of Ordinance 2001 empowers Zila Council, Taluka Council, Town Council and Union Council to make bye-laws within the ambit of their responsibilities to carry out the purposes of Ordinance 2001 and consequently District Council of the City District Government have framed bye-laws of 2003 envisaging change of land use and Rule 3 whereof prescribes a procedure to be adopted before reclassification of land use. Rule 9 further envisages constitution of a Committee comprising of seven members to be elected by the City District Council and the Executive District Officer Master Plan would be the Secretary of such council, Rule 9.3 empowers the Committee to propose change of land use on any place or road in accordance with rules. According to the learned counsel such Committee in a meeting held on 12-4-2005 had recommended the commercialization of additional four roads including the road on which the plot in question is situated and thereafter City District Council vide their Resolution No,659 dated 17-6-2005 approved its commercialization and thereafter such change was notified in the Sindh Government Gazette on 6-10-2005. Mr. Manzoor Ahmed while referring to various notifications and Resolutions has contended that previously such powers were exercised by erstwhile Karachi Development Authority.
' Mr. Haider Shaikh learned counsel appearing for the KBCA has adopted the arguments of the learned Counsel for the respondents and in addition thereto has stated that the plot in question was commercialized and permission for construction/sale was accorded after fulfilment of all formalities. It was therefore, jointly prayed that the petition be (3) dismissed and the interim order be vacated.
' We have heard learned Counsel for the respective parties and perused the record and the case- law cited at bar.
' The first question which requires determination is as to whether commercialization can be allowed by CDGK of a plot or an area reserved for residential purposes in Zonal Plans. The scrutiny of the contentions/of the respective parties in the light of previous history of such conversion reveals that previously commercialization of a plot or an area reserved for residential purposes in a zonal plan was allowed by the Karachi Development Authority by exercising powers vested in it sunder Article 40 of Karachi Development Authority Order, 1957 (hereinafter referred to as "Order 1957") which provided as follows:
40. Zonal Plan Scheme. ---(1) The Authority may, from time to time in regards to any area wholly within or wholly without or partly within and partly without the City, make Zonal Plans, showing the purposes 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 Central 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 sub-Article (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 given, notice to all persons it deems affected.
(5) If the Authority refuses premises to any person, such person may within thirty days of the Authority's refusal, move the Central Government for a revision of the case.
(6) The decision of the Central Government on any such revision shall be final.
A perusal of the above reproduced Article reflects that sub-Article (4) had provided an exception to sub-Article (3) which prevented change of land use for the purposes other than laid down in the Zonal Plan Scheme by allowing such conversion by an order of authority after a public hearing and notice to all affected persons. It appears that the authority while taking note of the fact that residential plots were being misused as commercial on various roads and in various residential Schemes while exercising powers under this very sub-Article (4) allowed commercialization of residential plots on many roads. The record provided by Mr. Manzoor Ahmed of CDGK reflects that on 20-5-1975 the governing body of the Karachi Development Authority accorded its approval for commercial of residential plots on Tariq Road, Allama Iqbal Road, PECHS Road and Drigh Road and thereafter such commercialization of residential area expanded to various schemes and roads of Karachi. The Authority in 1978 while exercising powers vested in it under Article 15 of the Order 1957 even framed Regulations for the Commercialization of Residential plots facing Main Roads known as "Regulation for Commercialization of Residential plots facing Main Drigh Road (Shahrah-e- Faisal) from Aisha Bawany Academy to Malir Bridge". Though the commercialization of a plot or an area reserved for residential purposes in a zonal plan throughout remained within the domain of KDA but Regulations of Planning, construction, control and demolition of building in the year 1979 was entrusted upon the "Authority" appointed by the Government of Sindh under section 4 of "The Sindh Building Control Ordinance, 1979" (hereinafter referred to as "Ordinance 1979") and the Regulations framed by the Authority under section 21-A of the Ordinance, 1979. It appears that the Authority for the first time while exercising powers under section 21-A framed Regulations which were known as Karachi Building and Town Planning Regulations, 1979 and thereafter these Regulations were superseded by the Karachi Building and Town Planning Regulations, 2002 by making a provision for the continuation of the acts initiated under Regulations 1979.
The process of commercialization undertaken by the KDA throughout remained a subject of dispute before this Court as well as the Supreme Court and the Apex Court in the case of Jawad Mir Muhammadi v. Farooq Mirza (PLD 2007 Supreme Court 472) has concluded that a residential plot can be converted into a commercial-cum-residential in accordance with the provisions of Karachi Development E Authority order, Ordinance and the Regulations as there is no specific bar on such conversion in all the said laws/ regulations. The apex Court in the said case after examining its earlier pronouncements in the case of Abdul Razak v. Karachi Building Control Authority (PLD 1994 SC 512) Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423 and Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (1999 SCMR 2883) has drawn following inferences or deductions from the said judgments. The relevant portion of the judgment reads as follows:
(i) that plot designated as an amenity plot and reserved for a public benefit/facility such as hospital, School, College, Library, Park, playground, community centre, etc., the nature or use thereof can never be converted for residential or commercial use;
(ii) that a residential plot can be converted into a commercial or commercial-cum-residential in accordance with the provisions of KDA Order, Ordinance and the Regulations as there is no specific bar of such conversion in all the said laws/regulations; (italic added).
(iii) that there is no impediment in the construction of high rise building on a plot after change/conversion of its use from residential to commercial or residential-cumcommercial provided that the provisions relating to the conversion of plot and commercialization contained in the laws/regulations referred to hereinabove are complied with and the concerned authorities undertake to provide new infrastructure for provision of enhanced water supply, electricity, gas, provide better sewerage system, roads and ensure enjoyment of peaceful life to the residents of the locality;
(iv) that constructions of a high rise building not strictly in accordance with the provisions of law and suffering from irregularities can be regularized by compounding the irregularities and payment of composite fee provided that there is no violation of the laws/regulations and further that the violations are of the nature which can be regulated.
This leaves no doubt that till the exercise of commercialization of a plot or an area reserved for residential purposes in Zonal Plans was undertaken by KDA under Order 1957, this Court as well as the Apex Court has held such commercialization, of course when effected after permission from the Lessor and in accordance with the provisions of Order 1957 and the Regulations made thereunder to be legal.
' During the subsistence of "Order" 1957" in the year 1999 when the Provincial Assembly was dissolved in pursuance of the Proclamation of fourteenth day of October, 1999 and the Provisional Constitution Order No,1 of 1999, the Governor of Sindh in the year 2001 promulgated Ordinance No, XXVII o 2001 known as Sindh Local Government Ordinance, 2001 (hereinafter referred to as "Ordinance 2001") with the intent to devolve political power and decentralize administrative and financial Authority to accountable "Local Government" which as defined under section 2 (xvi) of "Ordinance 2001" includes:-
(a) a District Government or a City District Government and Zila Council;
(b) a Taluka Municipal Administration and Taluka Council;
(c) a Town Municipal Administration and Town Council; and
(d) a Union Administration and Union Council; ' The "Ordinance 2001" further provides the Functions and Power of the Local Government and the functions and powers relevant for the purpose of deciding the controversy are reproduced herein below:--- Section 39: COUNCIL shall be to-- Functions and Powers of Zila. The functions and powers of a Zila Council a. Approve bye-laws proposed by the District Government under this Ordinance. b. .Upto n.
' 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 renewals and ecological balances; (b)
(c)
(d)
(e)
A perusal of the functions of a Zila Council in a City District makes it abundantly clear that powers similar to those which were conferred upon the Karachi Development Authority under Article 40 of Presidential "Order 1957" before its repeal vide "The Sindh Development Authority Laws (Repeal)
Ordinance 2002" are now enjoyed by a Zila Council in a City District under section 40 of Ordinance 2001 whereby such Council has been empowered to approve reclassification of land. It appears that Part "D" of the First Schedule to Ordinance 2001 further empowers the City District Government to set up District Municipal Offices for integrated Development and Management of various services including "Master Planning, land use, zoning and classification, re-classification" in the following terms:- FIRST SCHEDULE Part- D (i)
(ii)
(iii) Depending upon the economies of scale and nature of infrastructure the City District Government may vary grouping of offices contained in Part-C and set up District Municipal offices for integrated development and management of the following services:- a................. To h.
(i) Master Planning land use, zoning and classification, reclassification
(i) .......................... To (p)
' Ordinance 2001 further under section 192 envisages that a Zila Council, Taluka Council, Town Council and Union Council may, in their ambit of responsibilities, make bye-laws to carry out purposes of Ordinance 2001. It appears that while exercising such powers the City District Government vide Resolution No,383 dated 6-1-2004 approved change of land use bye-laws 2003".
Perusal of the change of land use bye-laws 2003 reflects that under Article 1.4 the entire proceedings in respect of change of land use in the City District Government are to be undertaken by the Master Planning Department whereas, Article 1.5 provides that beside the areas already classified as commercial no permission for change of land use shall be granted on a road the width whereof is less than 100 feet. Likewise, Article 9.1 provides that City District Government through election would constitute a Committee comprising of seven-members and the District Officer Master Planning would be its Secretary. Such Committee in accordance with Rules and Regulations would consider and submit proposals to the Council for the change of land use. So also, Bye-Laws 2003, provide a procedure for commercialization of a plot on reserved for residential purposes in a zonal plan and a procedure similar to that as was provided in sub-Article
(4) of 40 of Order 1957, has been adopted in Article 3 of the Regulations 2003 viz an application on a prescribed form, scrutiny by Master Plan, Public Notice in at least two newspapers, inviting objections from public at large followed by a public hearing and lastly acceptance or rejection of such conversion. Perusal of section 40 in this context leaves no doubt in our mind that the power to approve reclassification of a plot or ,scheme for a purpose other than as specified in the Master Plan vests with the Local Government and perhaps for these very reasons this Court in the case of Mrs.Farida and others v. New Allied Electronics Industries (Pvt.) Ltd. And others (2009 YLR 1896) relied upon by Mr. Manzoor H Ahmed for CDGK, has held:--- "It has been settled by now that commercialization of any plot by allowing change of land use is a prerogative of the respondent, CDGK and such powers cannot be interfered but only if all the laws, rules, bye-laws and regulations issued from time to time in this regard by the competent authority have been complied with."
' We would now take up the issue as to whether the City District Government had the power to allow conversion of plots located on roads in terms of Tajveez No,3 published in the Sindh Government Gazette on 12-2-2004 whereby commercial construction was allowed on the roads of Karachi or to allow commercialization on four additional roads including the one subject-matter of instant petition by adopting Resolution No, 659, dated 27-6-2005. The record reflects that in order to exercise powers vested in a Zila Council in terms of section 40 of Ordinance 2001 a' commercialization policy was announced followed by "Change of land use bye-laws 2003". It is also pleaded by the respondents, that taking into consideration the pressing need of the day and after considering the history of the commercialization in the city and conducting a detailed survey and study the re-classification of certain schemes and commercialization only on the road the width whereof is at least 100 feet proposed by the Committee under Article 9 of the Bye-laws 2003 was approved by the City Council followed by a Notification in the official Gazette. The procedure adopted by the City District Government has been detailed in the affidavit of Muhammad Wilayat Ali Data, District Officer, Master Planning Group of Offices, the following terms:---
3. That I say that the people of the different areas approached to the concerned department that the following Roads may be commercialized as the said Roads are situated on 100' wide road and more than 100' wide road and most of the people are using the said roads as commercial, therefore, the said roads may be declared as commercial and infrastructure may be developed. So on the demand of the people the concerned department concluded the physical survey and placed same before the Commercialization Committee. The physical survey of the following roads are asunder:-
1. Khayaban-e-Saadi
2. Khayaban-e-Roomi
3. Nishter Road
4. Alamgir Road
5. Strip of Fatima Jinnah Road.
4. The meeting of the Commercialization Committee held on 18-4-2005. Copy of survey report is available at page 1-13.
5. That I say that thereafter the Commercialization Committee has discussed the said matter and after detailed discussion only 4 roads have been recommended for commercialization and the matter was referred to the City Council. Copy of the minutes of the meeting is available at pages 14-15.
6. That I say that the said proposal was submitted to the Executive District Officer (MPGO) and the Executive District Officer (MPGO) has referred the same to the DCO and the DCO has referred the same to the City Nazim for approval of the City Council as the City Council is competent to do so.
Copy of the noting is available at page 1-2. The City Nazim has approved the same and matter was submitted to the City Council.
7. That I say that the District Officer (Council) raised objection that the minutes of the meeting may be submitted. Thereafter the same minutes have been submitted and matter, was placed before the City Council through Agenda No,36, Serial No,
1. The Agenda is available at page 19 of the file.
The said Agenda was distributed amongst all 256 members of the City Council. It was distributed on 18-6-2005 for the meeting of 27-6-2005. The same agenda was approved by the Council through Resolution No,659 dated 27-6-2005. Resolution is available at page-18. Thereafter the same was submitted to the Sindh Government for publication and a challan was also paid by CDGK to the Government of Sindh and the Government of Sindh has published the Notification. The notification is available at page-26."
It is also important to observe that perusal of Article 3 of "Bye-laws 2003" in this context reflects that despite reclassification of the roads by opening them for commercial construction such sites do not automatically become commercial sites as the proponent of a project who intends to take the benefit of such reclassification has to follow a process in term of Article 3 of "Change of land use by-laws 2003" and still it remains within the competence of the City District Government to decline the commercialization, in case, the objections of the public at large are upheld. For instance in the instant case the respondent despite reclassification of the land use by way of Resolution No, 659 dated 27-6-2005 applied to the concerned Society for obtaining no objection for commercialization of their plot and the Society vide their letter dated 3-3-2007 submitted its no objection to the Master Planning Group of Offices, such request was followed by a similar no objection from the Lessor to Master Planning Group of Officers. Thereafter public notices in `two daily newspapers viz, daily "Jassarat " and daily The "Time" dated 28-12-2006 were published intimating the public at large regarding such conversion by inviting objections and consequent hearing in the office of Union Council-2, Gulshan-e-Iqbal Town, Karachi. Upon receipt of objections, notices were issued informing the Objector of the date of hearing of such objection and thereafter upon conducting public hearing the Union Council, Gulshan-e-Iqbal Town, Karachi vide their letter, dated 11-4-2007 issued their no objection for conversion of land use. The respondent thereafter deposited the commercialization charges and consequently Master Planning Group of Offices vide their letter dated, 5-7-2007 granted their no objection for conversion of residential plot to commercial use viz, shops, offices and flats from town planning point of view. The Government of Pakistan, Ministry of Housing and Works, the ultimate owner vide their letter dated 6-9-2007 also accorded their consent for such conversion of land use and thereafter Karachi Building Control Authority on 22-3-2008 issued their no objection for the sale and development of residential flats/showrooms. The respondent thereafter advertised the sale of shops/offices/flats in more than six different newspapers for at least more than 15 times despite which the petitioner did not challenge the process and allowed the respondent to raise construction upto ground plus 5th and thereafter has challenged the entire process by way of instant petition. In the circumstances and in view of what has been discussed above, nothing has been placed before us to show that the reclassification of various roads by opening them for commercial construction by notifying Tajveez No,3 dated 12-2-2004 or Resolution No, 659 dated 27-6-2005 was not within the competence of the Local Government specially when despite declaring such roads open for commercial construction.
It is obligatory upon the Local Government to examine each and every case of conversion on its merits and in terms of Article 3 of Bye-Laws 2003 after a public hearing.
As to the arguments that such commercialization is not uniform in term of Regulation No,18-5.1.1 of the Karachi Building and Town Planning Regulations, 2002, suffice it to observe that this Court in the case of Mrs. Fareeda and others v. New Allied Electronic Industries (Pvt.) Ltd. And others (2009 YLR 1896) as relied upon by Mr. Manzoor Ahmed has considered this submission and concluded as follows:--- "He contended that as per language of the regulation 18-15.1.1 of the Regulations 2002, the conversion of the residential plot into commercial can only be allowed according to uniform cornercialization policy formulated and revised from time to time by Town Planning Department with the approval of the Government of Sindh and notified in Sindh Government Gazette on the basis of comprehensive study of various Urban areas under pressure for commercialization and individual plots outside the policy will not be considered for commercialization. He submitted that the Resolution No, 383 dated 6-1-2004 and Resolution No, 659, dated 6-10-2005 which was gazetted by the City District Council had no formal approval of the Government of Sindh, therefore, commercialization of the plot in question by the respondent cannot be termed as legal. Replying the above arguments, the learned counsel for the respondent No,1 submitted that as per comments filed by the Assistant District Officer, CDGK Town Planning Department commercialization policy as well as the two resolutions referred to above have been made in accordance with law and general presumption is that every act performed by the government functionaries would be presumed to be in accordance with law until and unless some tangible evidence is brought to contradict this presumption. He submitted that the two notifications issued by the City District Government which have been produced by the petitioners as annexure A and Annexure C are clear proof that commercialization has been made in accordance with the approved policy and the same has not been individualized in a particular case of the respondent.
He referred to the language of the notification which indicate that not only Khayaba-e-Roomi was commercialized but also Khayabane-Saadi and Nashtar Road (Dhoraji Road) as well as Alamgir Road, hence the contention of the learned counsel for the petitioner has no substance. He relied upon the case of Sagheer Ahmed, PLD 2004 Supreme Court 261 in which it has been held as under:- -- "Article 129(e)---Official acts--Presumption---Acts performed by public authorities deserve due regard by the Courts and every possible explanation for their validity should be explored and the whole gamut of powers in pursuance of which they act or perform their functions and discharge their duties should be examined---Presumption of regularity is attached to the official acts".
' After careful consideration of the above arguments of the learned counsel for the parties and the case-law we are inclined to hold that the contention of the learned counsel for the petitioners is devoid of merit because the notification issued by the City District Government in official Gazette of the Government of Sindh is a prima facie proof that the acts referred to in these notifications have been performed in accordance with the law bye-laws, and regulations as provided under Article 129 (e) of the Qanun-e-Shahadat Order 1984, until and unless some tangible evidence is brought on record by the party alleging contract to the same. The case of Saghir Ahmed, supra is applicable in all fours. The language of the regulation 18.5.1.1 clearly shows that the conversion of the residential plot into commercial is permissible in accordance with the uniform commercialization policy so formulated and in this case this conversion has been made in accordance with the corner-civilization policy of the City District Government and the other conditions of the regulation that the same should have been notified in the Government Gazette which has been done as admittedly by the petitioners, and no individual plot outside the policy has been considered for commercialization policy. In these circumstances, we are in agreement with the learned counsel for the respondent No,1 that in instant petition this Court cannot interfere into the acts of the respondents with regard to the commercialization of the plot in question".
As to the construction of the ramp on Compulsory Open Space, the contention of the learned counsel that is violative of Town Planning Regulations 2002 and is liable to be pulled down, appears to be ill-founded for the simple reason that the Authority as defined in section 4 of the Ordinance 1979 in exercise of the power conferred by section 21-A of the Ordinance 1979 on 4-8-2005 had notified certain amendments in the Karachi Building and Town Planning Regulations 2002 and one of the amendments was in respect of Compulsory Open Space by allowing the construction of ramps thereon. The amended Article 2.39 reads as follows:- Article 2.39 "COS-Compulsory Open Space" means that part of a plot which is to be left completely open to sky, over which no structure or any integral part of the building shall be permitted except ramp upwards permissible projections, basement including ramp, steps, septic under-ground tanks, soakpits, water reservoirs and lines for sewage, water, electricity, gas, telephone etc, or those structure required by civil agencies such as electric sub-station permitted elsewhere in these Regulations.
' As to the disturbance which such construction has allegedly caused to the easementary right of the petitioner i,e, privacy, air and light, a similar question L had come before the apex Court in the case of Jawad Mir Muhammadi (supra) and was decided in the following terms:- "24. As regards the right of privacy it is pertinent to note that this Court in the case of Fazal-i- Raziq v. Syed Zaman Shah and others PLD 1980 SC 193 held that likelihood of any person having opportunity of overlooking the property would not be a sufficient ground to hold that there was interference in the enjoyment of the property or it would amount to interference in his privacy or easementary rights.
25. As regards the deprivation of the rights to light, fresh air and clean environment, it is noted that infringement of such rights can be established only by producing satisfactory evidence and not merely on the statements in the pleadings of the affected party. There is no material on record to prove the allegation of the appellants relating to deprivation or violation of the above easementary rights by construction of the alleged illegal floors. It is their unfounded apprehension based on subjective and abstract consideration. The hardships, inconvenience, or discomfort likely to result by the building in question must be more than "mere delicacy of fastidiousness and more than Producing sensitive personal discomfort or annoyance. Such annoyance or discomfort or inconvenience must be such with the law considers as substantial or material". The appellants have failed to prove infringement of their rights of environment as there is no material to substantiate their infringement.
' The petitioner has pleaded violation of section 12 of the Pakistan Environmental Protection Act, 1997 by asserting that no permission as required under section 12 was obtained before the reclassification of the land use by the Local Government or by the respondents Nos. 9 and 10 before the commencement of the construction. The respondents Nos. 9 and 10 have not denied such assertion in their Counter Affidavit nor the Local Government has placed anything on record to show that before considering reclassification of the land use any consultation had taken place between Master Planning Group of Offices and Pakistan Environmental Protection Agency or permission as required under section 12 of the said Act was obtained. Perusal of section 12 of the Act 1997 reflects that no proponent or a project shall commence construction or operation unless he has filed with the Government Agency designated by Federal or Provincial Environmental Protection Agency/ Agencies; as the case may be, or, where the project is likely to cause an adverse environmental effect an Environmental Impact Assessment, and has obtained from the Government Agency approval in respect thereof, subsection xxxv) of section 2 of the Act, 1997 defines project" in the following terms:--- (xxv)"Project" means any activity, plan, scheme, proposal or undertaking involving any change in the environment and includes,
(a) construction by use of building or other works;
(b) construction or use of roads or other transport systems;
(c) construction or operation of factories or other installations;
(d) mineral prospecting, mining, quarrying, stone-crushing, drilling and like;
(e) any change of land use or water use; and
(f) alteration expansion, repair, decommissioning or abandonment or existing buildings or other works, roads or other transport systems, factories or other installations; ' A perusal of clauses (a), (e) and (f) appears to be relevant which envisages that in all cases where any change in the land use is brought or in consequence to such change, construction or alteration/ expansion of an existing building takes place and such change is likely to cause an adverse environmental impact then an environmental impact assessment has to be filed before the Provincial Environmental Protection Agency for obtaining necessary approval.
' There can be no two views that in all cases where an area notified for residential purposes is reclassified for commercial activity it is likely to cause an adverse environmental impact for the simple reason that after converting a residential area into commercial a large number of additional people and vehicles would visit and pass through such area and would cause environmental pollution and unless prescribed measures to avoid such environmental pollution as directed by Pakistan Environmental Protection Agency are adopted such reclassification or construction may not only be illegal but a culpable offence under the "Act 1997" and may violate the basic right of the residents, of such reclassified residential zone. This aspect of change of land use was also pleaded before the Apex Court in the case of Sheri-CBE v. Lahore Development Authority (2006 SCMR 1202) and was recorded in para 37 of the leave granting order in the following words:--- ' It was submitted that the complex in question which involved construction of a huge building with an initial estimated cost of Rs.1500 million, which involved use of roads in a residential locality by a large number of additional persons and vehicles visiting the said plaza and which also involved a change of land use, fell within the purview of 'Project' as defined by section 2 (xxxv) of the Pakistan Environmental Protection Act No, XXXIV of 1997 and in view of the provisions of section 12 of the said Act of 1997, the very commencement of its construction without filing an initial environmental examination with the Federal Agency and without its approval regarding the environmental impact assessm ent, was grossly illegal and was even a culpable offence under the said Act. This issue also requires examination.
' Since the issue is already before the apex Court, therefore, we without further dilating or providing for any consequences would direct the respondents to approach the Agency under the "Act 1997" for obtaining necessary approvals for reclassification and construction before commencing further construction. The Agency is directed to entertain the representation when made to deal with the same in accordance with the relevant provisions after affording opportunity of hearing to the persons likely to be adversely affected including the petitioner and to place such report before this Court within M four weeks.