' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---This appeal is by the leave of the Court against the judgment of Sindh High Court, Karachi dated 2-4-2008 whereby Constitution Petition No,D-1126 of 2006, filed by respondents had been allowed.
2. Precisely stating facts are that one Mst. Farhat Saleem got allotted in her favour plot No,44-A in Block A, admeasuring 2000 square yards, situated in Moulana Muhammad Ali Johar Memorial Cooperative Housing Society (MMCHS) vide allotment No,130, as back as on 26-6-1964, followed by an agreement between the lessor i,e, the President of Pakistan and the lessee i,e, allottee, dated 31- 3-1979, inter alia with the condition that "said plot shall not be sub-divided or amalgamated with any other plot except with the previous consent in writing of lessor and subject to such terms as the lessor may from time to time impose."
3. It seems that Ms. Farhat Saleem approached to the Master Plan Environmental Control Department, Karachi Development Authority requesting for sub-division of Plot No, 44-A. Request so made by her was acceded to, as it is evident from the letter dated 6-12-1980, which contains the approval of sub-division of Plot No,44-A, as such new numbers, i,e, 44-A and 44-A/1 were assigned by MMCHS with the conditions that original zoning regulations would be applicable to the plot and this permission was subject to approval of the Ministry of Works, Government of Pakistan; compulsory open space was also required to be left as marked on the attached plan. A perusal of the attached plan reveals that the area of slashed/divided plot No,44-A/1 was shown equal to 555.55 square yard out of total 2000 square yards. Accordingly, Government of Pakistan Works Division on 22-4-1991 conveyed its concurrence to the Honorary Secretary of MMCHS and officially subdivided plots were numbered as under:-- {{TABLE}} Sr. No, Plot No, Area Sq. Yds
1. 44-A 1444.45 {{TABLE}} ' A formal communication was also addressed to Ms. Farhat Saleem by MMCHS on 24-12-1991.
Subsequent thereto she applied for commercialization of sub-divided plot No,44-A/1 measuring 555.55 square yards, which statedly was approved by Karachi Development Authority vide letter No, URP.
75.77.MP&AC/80/430, Ministry of Works and Housing, Government of Pakistan vide letter No,F.3(85)/72-75/DEM dated 28-3-1992 and Muhammad Ali Memorial Cooperative Housing Society Ltd. Vide letter No,DR/63/91-92 dated 31-3-1992.
4. It is important to note that according to the available record, Ms. Farhat Saleem had already raised residential construction on the original plot bearing No,44-A before its sub-division into plots Nos,44-A and 44-A/1. She sold the later portion i,e, 44-A/1 vide conveyance deed dated 14th Day of May 1992 to Abdul Razzaq son of Abdul Aziz, Muhammad Younas son of Abdul Aziz, Muhammad Sohail son of Muhammad Younas and Muhammad Ali son of Abdul Razzaq in the name of joint partnership namely Messrs Younas BrotheRs, Accordingly, on 3-10-1996 the said plot was transferred in the name of Younas brotheRs, Subsequent thereto, Younas brothers vide sale deed dated 3-9-2004 sold the plot to Messrs Muhammad Siddique son of Haji Ebrahim and Muhammad Ovais son of Muhammad Siddique (petitioners), followed by the change/mutation in respect of purchased plot by the Government of Pakistan, Ministry of Housing and Works, Chief Engineer (South) Pak PWD, Block No,49, Pak Government Secretariat, Karachi dated 23-9-2004, acknowledgment whereof was also made in respect of the transfer of the commercial property in the names of the petitioners by MMCHS on 28-9-2004. The petitioners applied to the KBCA for approval of building plan for basement+ground+8 upper flooRs, However, permission was granted for basement+ground+5 upper-floors under Karachi Building and Town Planning Regulations, 2002 (KBTPR, 2002), which were made applicable w,e,f, 4-4-2002. In pursuance of the approval of the plan, the construction on the plot also commenced when the respondent Zahid Saeed son of Ahmad Saeed and Humayoon Qureshi son of Abdul Rahim Qureshi filed Constitution Petition No,D- 1126/2005 before the High Court of Sindh at Karachi on 3-9-2005. On account of absence of the petitioner ex parte proceedings were drawn and the judgment was reserved, which was announced on 8-3-2007. Against the said judgment, a petition for leave to appeal being C.P.
No,285 of 2007 was preferred before this Court, which was accepted on 23-4-2007 and the case was remanded to the High Court for hearing and decision in accordance .With law. In post remand proceedings, another Division Bench allowed the petition vide impugned judgment dated 2-4- 2008, which has been assailed in the instant proceedings.
5. Learned counsel for the petitioners contended that Division Bench has not applied correct law on the subject of conversion of a residential plot into commercial one, namely, clause 3(b) of the Schedule D of Regulation 26 of KBTPR, 1979 because according to him this provision relates to "sub- division, amalgamation and change of land use of amenity, utility plots etc.", therefore, dealing with these subjects, the Commissioner requires to issue notices inviting public objections. Although in the instant case, notices were got published in daily Morning News dated 1-10-1979 and daily Mashriq dated 2-10-1979. However, without prejudice to the arguments, which prevailed upon the learned High Court, requirement of the regulations referred in the judgment by the High Court stands fully complied with.
6. On the other hand, learned counsel for respondents Nos,9 and 10 argued that the very sub- division of the plot was without the prior approval of the concerned authority i,e, Master Plan and Environmental Control Department, subject to the provision of original zoning regulations.
7. It is to be noted that in respect of KBTPR initially the subject was used to be governed by the Karachi Development Authority Order, 1957. Clauses (4), (5) and (6) of Article 40 as well as subsections (2) and (3) of section 52A are reproduced hereinbelow: - "40. (1) .....................................
(2) .......................................
(3) .........................................
(4) If any person desires to use any land for any purpose other than that laid down in the Zonal Plan Scheme notified under clause (3), he may apply to the authority for permission to do so and the Authority may order a public hearing and give notice to all persons it deems affected.
(5) If the Authority refused permission to any person, such may within thirty days of the Authority's refusal, move the Provincial Government for a revision of the case.
(6) The decision of the Provincial Government on any such revision shall be final.
52A. (1) ..............................
(2) The Authority or the Housing Society may at any time prior to utilization of any plot reserved for the purpose mentioned in subsection (1), apply to the Commissioner for conversion of such plot to any other purpose.
(3) The Commissioner shall, on receipt of an application under subsection (2), invite objections from the general public through a notice published in one English and vernacular leading local daily newspaper and the objections, if any, shall be submitted to the Commissioner within 30 days from the date of the publication of the notice."
8. It may be noted that this Court granted leave in the case of Jawad Mir Muhammadi v. Haroon Mirza (PLD 2007 SC 472), primarily, to consider and reconcile two conflicting judgments of this Court delivered by Benches of equal strength in almost similar facts and circumstances. The first judgment was in the case of Abdul Razak v. Karachi Building Control Authority (PLD 1994 SC 512) and other case was Multi Lines Associates v. Ardeshir Cowasjee (PLD 1995 SC 423). In both the cited cases the issues involved were, with regard to conversion of the user/nature of plot, approval/sanction by the KDA for conversion and change in the user of the plot.
Permission/approval for construction of high rise buildings, violation of rights of privacy, air, sunlight, pollution free atmosphere of the residents of the locality and extra burden on the utilities available in the locality, such as electricity, gas and water, sewerage on account of construction of large number of flats, departments in place of single residential house, as well as congestion on the adjacent roads/trees due to increase in the number of vehicles. As such, leave was granted on 24-4-1996.
9. It may be noted that subsequent to grant of leave, a Bench of 5 Judges of this Court in the case of Ardeshir Cowasjee v. Karachi Building Control Authority (1999 SCM R 2883) made following observations:-- "20. The perusal of the above quoted extracts from the above judgments indicates that in the case of Abdul Razak, this Court held that the power to regularize contained in the Ordinance and the Regulations is intended and designed to be exercised when irregularity of the nature which does not change the complexion or character of the original proposed construction nor it adversely affects third parties rights/interest. It has been further held that the paramount object of modern city planning seems to be to ensure maximum comforts for the residents of the city by providing maximum facilities and that a public functionary entrusted with the work to achieve the above objective cannot act in a manner, which may defeat the above objective. It has been further held that deviation from the planned scheme will naturally result in discomfort and inconvenience to otheRs, It has also been held that framing of a housing scheme does not mean sinipliciter, levelling of land and carving out of plots, but it also involves working out approximate requirement of water, electricity, gas, sewerage lines, streets and roads, etc. And if a housing scheme is framed on the assumption that it will have residential units 1 + 1 but factually the allottees of the plots are allowed to raise multi-storeyed buildings having flats, the above public utility services will fall short of requirements with the result that everyone living in the aforesaid scheme will suffer. It has also been held that to reduce the miseries of most of the Karachites, it is imperative on the public functionaries like the Authority to ensure adherence to the Regulations. However, it has also been clarified that it may not be understood that once a scheme is framed, no alternations can be made. Alternations in a scheme can be made for the good of the people at large, but not for the benefit of an individual for favouring him at the cost of other people. It may also be noted that on having taken into consideration that divergent opinions were made in both the judgments in the cases of Abdul Razak and Multi Lines Associates (ibid), following pronouncement was made:-- "21. The above conclusion recorded in the case of Multiline Associates v. Ardeshir Cowasjee and others PLD 1995 SC 423 (supra) runs contrary to what has been held in the judgment of this Court in the case of Abdul Razak v. Karachi Building-Control Authority and others PLD 1994 SC 512 (supra) highlighted hereinabove. With due deference, we are unable to subscribe to the above view found favour in the case of Multiline Associates v. Ardeshir Cowasjee and others PLD 1994 SC 423. The legal position enunciated, inter alia, in the above-quoted extracts from the judgment in the case of Abdul Razak v. Karachi Building Control Authority and others PLD 1995 SC 512 is in consonance with the provisions of Karachi Development Authority Order, 1957, Sindh Building Control Ordinance, 1979, and the Building Regulations, 1979. The power to regularize contained in the Ordinance and the Regulations is intended and designed to be exercised when irregularity is of the nature, which does not change the complexion or character of the originally proposed construction. The Government or the Authority under the Ordinance does not enjoy unbridled or unfettered power to compound each and every breach of the Regulations. The Regulations should be applied for the benefit of the public and not for favouring an individual. Simpliciter the factum that on account of tremendous increase in the population in Karachi the situation demands raising of highrise buildings, will not justify the conversion of residential plots originally intended to be used for building ground-plus- one and allowing the raising or high-rise buildings thereon without providing for required water, electricity, gas, sewerage lines, streets and roads etc. ' We may observe that even when the conversation of a residential plot on the main roads into a commercial plot is warranted on account of change in the situation, the legal requirement of public notice, inter alia, as envisaged by Article 40 of the K.D.A. Order (if applicable) and para.3 of Schedule `D' to the Regulations is to be complied with. Secondly, simpliciter conversation of a residential plpt into commercial does warrant granting of permission for a highrise building having 17/18 floors, but the Government or the Authority is under obligation to keep in view the quantum of water, electricity, gas sewerage lines, streets and roads etc., available in the locality involved, and efforts should be made to allow minimum floors, so that the same may cause less inconvenience and discomfort to the inhabitants of the locality involved."
' This Court, however, in the case of Jawad Mir Muhammad (ibid) deduced some of the principles including the one 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".
10. Now while examining the instant controversy, it is to be noted that section 21-A was inserted in the Sindh Building Control Ordinance, 1979 by means of Sindh Building Control (Amendment)
Ordinance, 1982, subsection (3) whereof provides that "the Karachi Building and Town Planning Regulations, 1979, in the case of 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, so framed, provided that they are not inconsistent with the provisions of this Ordinance and the Rules framed therein."
11. It is just for taking note that the insertion of section 21-A(3) in the Ordinance, 1979 was enforced w,e,f, 6-3-1982 vide amended Ordinance, 1982; it can, safely, be concluded that under Ordinance, 1979 no provision was available to frame regulation, particularly, with reference to the context as it has been highlighted in said subsection. Thus, it is held that for the purpose of conversion of a residential plot into commercial plot in the zoning area, where the subject matter plot is situated, Article 40(4), (5) and (6) of the KDA Order was applicable.
12. It is further to be observed that before promulgation of Ordinance, 1979, the Government of Sindh vide their notification No,SO(vi)8(27)/72 dated 30-10-1978 constituted a committee of experts consisting of ten members, from official and professional bodies under the convenership of Director, Master Plan and Environmental Control department, KDA under Sindh Building Control Ordinance, 1979 to frame uniform Building Bye-laws. This extract has been taken from the foreword of KBTPR, 1979. It seems that perhaps pending proceedings of the committee, constituted under the above said notification, the Sindh Building Control Ordinance, 1979 was also promulgated, therefore, reference of Master Plan Environmental Control Department has also been made.
However, the committee finally prepared recommendations and also named in this notification the Master Plan, reference of which is mentioned in the regulations. And no sooner, the draft regulations were prepared by the committee, notification without any date or number was issued by the Government of Sindh, Housing, Town Planning and Local Government Department, Karachi, under purported exercise of powers conferred by Article 142(c) of the Constitution read with part I, item (37) of the Federal Legislative List, mentioning therein that the Governor of Sindh was pleased to make the regulations for the whole Karachi Division. It seems that these regulations were given legal effect vide section 21-A(3) of the amending Ordinance, 1982, reference of section 26 of schedule D can be made, which deals with sub-division, amalgamation and change of land use in the approved schemes and other areas. The criteria laid down in the schedule D, shall be followed.
It would be appropriate to reproduce clause 3 of Schedule D of Regulation 26 of KBTPR, 2002, which reads thus:-- "3. No change of land use or conversion of Amenity, Utility and other plots as defined in subsection 2(a) through 2(e), 2(h), 2(i), 2(j) part I of Schedule 'G' earmarked in the layout plans of any housing scheme, prepared by any local body, housing society or by any private developer, shall be allowed except in accordance with the following procedure:-
(a) The local body, housing society or the private developer shall apply to Commissioner, Karachi for the change of land use or conversion from any other purpose for the plots reserved for the purposes as mentioned above with full justification and details.
(b) The Commissioner shall, on receipt of such an application under subsection (a), invite objections from the general public through a notice published in one English and One Urdu leading local daily newspaper. The period for filing objections with the Commissioner shall be 30 days from the date of the publication of the notice, which should also be mentioned in the notice.
(c) The applicant shall bear all the expences of advertisement etc. And deposit the money with the Commissioner, Karachi.
(d) In addition to the expenses mentioned in subsection (c), the applicant shall pay the prescribed, fee/charges for the change of land use to the Concerned Authority and Scrutiny fee to METROPOLITAN CORPORATION AND EC (Authority constituted under Sindh Building Control Ordinance, 1979) fixed from time to time.
(e) The Commissioner shall after considering the objections received under subsection (b) and hearing such persons as he may consider necessary, shall forward his recommendations along with the application and other connected papers to Government for ordeRs,
(f) The Commissioner shall also consult METROPOLITAN CORPORATION AND EC (Authority constituted under S.B.C. Ordinance 1979) and the Concerned. Authority, before submitting his recommendations to the Government under subsection (e)."
' The argument so raised by the learned counsel seems to be unfounded as the opening word of clause (3) (ibid) abundantly makes it clear that it deals in respect of the change of land use. In the instant case as per allotment letter dated 26-6-1964 the land (plot) was allotted in the name of Ms. Farhat Saleem for residential use. As far as other aspect of the case, namely, conversion of amenity is concerned, that is disjunctive from the earlier one as in view of the word "or" which has been used between both of them. However, the local body, housing society or the private developer has to apply to the Commissioner for the change of land use or conversion for any other purpose for the plots reserved for the purpose as mentioned above with full justification and details. Thus, it also includes the change of land use, may be for the commercial purpose from the residential purpose and for such purpose, under section 3(b), on receipt of application, the Commissioner is bound to invite objections from the general public through notices to be published in one English and one Urdu leading local newspaper. Period for filing of objection with the Commissioner shall be 30 days from the date, who shall dispose of the same, subject to conditions laid down therein. Learned High Court on having seen the publication had not agreed in respect of fulfilling the conditions laid down in clause 3(a), (b), (c), (e) and (f) of the Schedule D of Regulation 26 of KBTPR, 1979 as the publications were not made in one English and one Urdu leading daily newspaper. Satisfaction of the learned High Court, while hearing the petition and on having seen the documents, calls for no interference and perhaps this is the reason that alternate argument was raised namely that the KBTPR, 2002 were applicable w,e,f, 4-4-2002 when the same were published in the Sindh Government Extraordinary Gazette. Learned High Court had taken notice of this fact that alleged permission of conversation has been obtained in the year 1991, therefore, this promulgation would not be applicable with retrospective effect. Hence, under the circumstances, we are of the opinion that learned High Court had rightly placed reliance on KBTPR, 1979, in view of the facts and circumstances noted hereinabove as before the Court no other alternate argument in respect of application under, Article 40(4), (5) and (6) were made. Alternatively, if this case has to be examined at the touchstone of Article 40(4), (5) and (6) of the KDA Order,- conditions laid down therein have also not been fulfilled because as per the conclusion of learned High Court on the factual side, the publication was not made in the leading newspapeRs, As far as Karachi Development Authority Order (V of 1957) is concerned, it has also been repealed vide' Sindh Development Authority Laws (Repeal) Ordinance, 2002.
13. Be that as it may examining the case of the petitioner from all possible angles noted hereinabove, we feel no hesitation in holding that division of the plot by Master Plan Environmental Control Department, Karachi Development Authority and allowing the conversion of the same vide- letter 31-3-1992 is contrary to the provision of regulation 26, Schedule D, clauses 3 (a)(b)(c).
14. Now the next question for consideration is with regard to the construction of multi-storeyed building in an area which is meant for 1+1 storeyed residential houses. The High Court had taken pains in settling this issue as it appointed experts (architects) and on the basis of their reports, after hearing the arguments of respective parties concluded that the approval of the plan for arising multi-storeyed commercial buildings is not warranted. As this aspect of the case was taken into consideration on basis of evidence, produced through the, reports of the architects, therefore, no interference is called for.
15. Thus, findings so recorded by the learned High Court being unexceptional do not call for interference, in instant proceedings for reasons noted above.
16. These are the reasons of our short order of even date, which is reproduced herein below:--- "For the reasons to be recorded later, listed appeal is dismissed with special costs of Rs,1,00,000 which is to be deposited by the appellant with the Registrar of this Court within two weeks, from where the respondents shall be entitled to receive subject to furnishing valid receipt.
(2) The appellants have raised constructions during pendency of the matter before the High Court at their own risk and costs, therefore, they are directed to demolish said building within 30 days and compliance report shall be sent to the Registrar of this Court for our perusal in ChambeRs,"