1. ' SAJJAD ALI SHAH, J.--- Mr. Abdur Rehman Advocate for the Intervenors is stated to be on general adjournment. Adjourned.
2. As requested deferred.
3. As requested deferred.
4. Through this application petitioners seek an order restraining the Respondents from carrying construction over Plot No, D-12, Block-9, KDA Scheme No,5, Kehkashan, Clifton, Karachi (hereinafter referred to as "the subject plot").
2. ' Learned counsel for the petitioners contends that the respondents Nos.8 and 9 intend to raise construction of ground + 18 storey building over the subject plot which originally was a residential plot and situated at Chaudhry Khaliq-uz-Zaman Road. Per counsel, though both sides of Chaudhry Khaliq-uz-Zaman Road were declared commercial by the City District Council vide its Resolution No,383 dated 6-1-2004 when the available width of Chaudhry Khaliq-uz-Zaman Road was more than 100 feet but after construction of Gizri Flyover its width has been reduced to less than 100 feet, therefore, commercial activity carried out by the Respondents No,8 and 9 on the subject plot is in clear violation of Clause-5 of the bye-laws framed by the City District Government in the year 2003 regarding change of land use which provides that except already approved commercial areas there shall be no permission for change of land use along with less than 100 feet vide road. It is next contended that the subject plot was being used as residential up to 2013 which fact negates the NOC for change of land use issued by the Karachi Metropolitan Corporation filed by the respondents Nos.8 and 9 reflecting date of application for conversion as 3-2-2007 and approval from Commercialization Committee on 7-5-2007, though the date on the NOC is 28-2-2013. It is next contended that special conditions prescribed in the NOC dated 28-2-2013 of K.M.C. Provides no "on street parking" and the respondents in their proposed project have provided only one floor for parking which would not cater the need of the entire building and ultimately after construction of the project this clause would be violated and the people would park their cars on the street. It is next contended that NOC from Air Traffic Service which the respondents were supposed to obtain in terms of the NOC dated 15-8-2013 granted by the Civil Aviation Authority has not been obtained till date. Likewise, Karachi Electricity Supply Corporation in their no objection for providing electric connection have not assured provision of electricity and that the construction would burden the present amenities which ultimately would effect the present residents/petitioners. It is next contended that no personal notices before conversion of the status of the plot was given to the neighbors, residents and petitioners, therefore, the conversion is liable to be struck down. In the last it is contended that Bye-Law 18-5.1.1 of the Karachi Building and Town Building Regulations, 2002 prohibits commercialization of individual plots and provides conversion of residential plot into commercial by way of a uniform commercialization policy. In support of his contentions learned counsel for the petitioners has placed reliance on the judgment of this Court in the case of Nighat Jamal v. Province of Sindh and others (2010 YLR 2624) and Mst. Unnnatullah v. Province of Sindh and others (PLD 2010 Karachi 236) to stress that by commercializing a road the plot does not automatically become commercial unless due process provided under the bye-laws is adopted and since the bye-law prohibits change of land use on less than 100 feet wide road, therefore, the NOC converting status of plot was unlawful, shortage of gas, electric, water and sewerage lines, etc. In consequent to such commercial construction is being pleaded by placing reliance on the judgment in the case of Abdul Razak v. Karachi Building Control Authority (PLD 1994 SC 512) and Ardeshir Cowasjee and others v. Karachi Building Control Authority '.And others (1999 SCMR 2883) and the conversion after notices to the neighbours and after adopting proper procedure is pleaded by placing reliance on the judgments in the cases of Muhammad Munir and others v. City District Government, Karachi and others (2007 CLC 906), Muhammad Islam and other v. Messrs Real Builders (PLD 2011 Karachi 204), Captain S.M. Aslam v. Arif Chishti and others (2008 CU 52), Messrs Datari International v. Navaid Hussain and others (2007 MLD 951) and Navid Hussain and others v. City District Government Karachi and others (2007 CLC 912) and Muhammad Anas Kapadia and others v. M. Farooq Haji Abdullah and others (2007 CLC 943).
3. ' On the other hand Mr. Mushtaq A. Memon, learned counsel appearing for the respondents Nos.8 and 9 contends that interim order at this stage would amount to grant of final relief claimed in the petition and therefore, the petitioners are not entitled to the interim relief so claimed. It is next contended that admittedly the construction is being raised on the plot which is under the municipal control of Cantonment Board, Clifton and Karachi Building and Town Planning, 2002 in terms of Regulation 1-1.3 have no application in the cantonment- area, therefore, the application of bye-law 18-5.1.1 as pleaded appears to be misconceived. It is next contended that admittedly the subject plot on which construction is being raised is situated at Chaudhry Khaliq-uzZaman Road which is 240 feet wide as claimed by the respondents in their counter affidavit in para-10 of C.M.A.
4. No,2994 of 2014 to which no counter affidavit was filed by the petitioners as well as in para-6 of their counter affidavit to the present application to which also no rejoinder has been filed, therefore, the bar of bye-law 5 of C.D.G.K. Regarding change of land use which prohibits conversion of plot along 100 feet wide road is inapplicable. Regarding delay of six years in issue of NOC, counsel submits that though the predecessor-in-interest of the respondents have applied for commercializing of the subject plot in 2007 after calling for objections in daily "Jassarat" dated 28- 1-2007 and "Daily Times" dated 26-1-2007 but on account of late payment of conversion charges/commercialization fee the process was delayed and the NOC was granted on 28-2-2013.
5. In response to the contention that the objections before change of status of the subject plot was not called, Mr. Memon while referring to box size public notices published in Daily Jasarat and Daily Times dated 28-1-2007 contends that due notices in respect of change of land use were published but no one objected. It is further contended that even the Executive Officer, Cantonment Board Clifton, before granting permission for raising construction had called objections from public at large through public notice published in daily "Jang" dated 13-9-2013, "Hilal-e-Pakistan" dated 13-9- 2013 and daily "Dawn" and in consequence to such public notices, objections were duly received in the office of the Executive Officer vide letter of Mr. Muhammad Siddiq Mirza, Advocate on 16-9-2013 and thereafter such objections were duly adjudicated by the Executive Officer, Clifton Cantonment as appears from the Minutes of the Meeting dated 10-10-2013 reflecting presence of Objector as well as the Builders where after permission for pre constructional activities was granted on 27-12- 2013 and provisional approval by the Cantonment Board on 7-1-2014. Even decision of Environmental Protection Agency i,e, Initial Environmental Examination (IEE) was obtained on 28-8- 2013 which was issued after thoroughly examining the traffic impact upon such construction. Per counsel, all units i,e, flats/shops have been sold out, third party interest has been created, construction is being raised as per approved plan, therefore, in the circumstances the petitioners are not entitled to any interim relief. Mr. Memon has referred to the judgment of this Court in the cases of Irfan and others v. Karachi Building Control Authority and others (2005 CLC 694), Capt. S.M.
6. Aslam and others v. K.B. C.A. And others (2005 CLC 759)), Sheikh Naeem Ahmed and others v.
7. Province of Sindh and others (2006 CLC 1231), Ardeshir Cowasjee and others v. K.B.C.A. And others (PLD 2006 Karachi 63), Arshad Abdullah v. Government of Sindh and others (2006 YLR 3209), Muhammad Hanif v. Sameena Sibtain (2007 YLR 3113), Navaid Hussain and others v. Jahangir Siddiqui and others (2007 CLC 1568), Syed Ali Asghar and others v. Creators (Builders) and others (2001 SCMR 279) Irfan and others v. K.B. C.A. And others (2005 CLC 694), Haji Amin v. Navaid Hussain and others (2008 SCMR 133) to emphasise that in cases where conversion is allowed by the competent authority after fulfilling all legal formalities the Court do not interfere and that once the competent authority has commercialized the road then there is even no need to seek permission for change of land use as status of the plots on both sides of the road is changed after the notification declaring the road open for commercial construction is issued and that in cases where the area is declared commercial and the construction is as per plan then the commercial activity could be carried out without hindrance. Mr. Memon further relied up on the judgment reported in the case of Sheni C.B.B. And others v. KB.C.A. And others (2003 YLR 1086) Navaid Hussain and others v. Jahangir Siddiqui and others (2007 CLC 1568), Mrs. Abida D'SA and others v. Mrs. Naheed Pabani and others (2008 YLR 738) and Mrs. Farida v. New Allied Electronics (Pvt.) Ltd. (2009 YLR 1896) and Jawed Mir Muhammad v. Haroon Mirza (PLD 2007 Supreme Court 472) in order to respond to the contention of the petitioner in respect of shortage of amenities.
8. ' In response Mr. Haseeb-ur-Rehman, learned counsel for the petitioner while referring to the Indenture of the Lease Deed of the petitioners submits that since the Indenture of the Lease Deed placed on record by the respondent with their application itself provides that on the East 140 feet wide Chaudhry Khaliq-uz-Zaman Road, therefore, it was not necessary for the petitioners to rebut the averments of the respondents Nos.8 and 9 in their counter affidavit that Chaudhry Khaliquz- Zaman Road is 240 feet wide.
9. ' Mr. Muhammad Ashraf Butt, learned counsel appearing for the Cantonment Board Clifton, fully supports the case of the respondents Nos.8 and 9 and submits that the Cantonment. Board after verifying the conversion of status of the subject plot from residential to commercial from Karachi Metropolitan Corporation and upon due fulfillment of all procedural formalities and payment of required charges had issued approval of the proposed building.
10. ' We have heard the learned counsel for the respective parties at length, perused the record as well as case laws cited at bar.
11. ' It appears to be an admitted position that Chaudhry Khaliq-uz-Zaman Road on which subject plot is situated was declared "open for commercial activity" by the City Council vide its Resolution No,383 on 6-1-2004. The record further reveals that the predecessor-in-interest of the respondents Nos.8 and 9 before moving application for "change of land use" in respect of subject property called objections by way of public notice published in Daily Jisarat and Daily Times, both dated 28- 1-2007, whereafter on 3-2-2007 they moved an application before Karachi Metropolitan Corporation, Master Plan Department (KDA Wing), seeking conversion of the status of the subject property from residential to commercial. Since both the sides of Chaudhry Khaliq-uz-Zaman Road were already declared commercial in the year 2004, therefore, the Commercialization Committee accorded its approval on 7-5-2007, thereafter, conversion charges were paid on 27-2-2013, whereafter Karachi Metropolitan Corporation, Master Plan Department (KDA Wing) vide its letter dated 28-2-2013 issued NOC for change of land use in respect of the subject property. The respondents Nos.8 and 9, thereafter, had purchased the subject property vide registered Conveyance Deed, which was duly executed before the Sub-Registrar Clifton Town, Karachi on 3- 6-2013 vide Registration No,1661. The record further reflects that thereafter the lessor i,e, Karachi Metropolitan Corporation executed "Memorandum Evidencing Change of Commercialization in previously Registered Lease Deed", which was also registered with Sub-Registrar-II, Clifton Town, Karachi on 20-8-2013 vide Registration No,2192. It further appears that the respondents thereafter moved Cantonment Board, which has the municipal control over the "subject property" seeking its no objection from the land point of view upon submission of building plan and consequently the Executive Officer, Clifton Cantonment Board vide its letter dated 4-9-2013 verified material facts from Karachi Metropolitan Corporation, Land Management Department, which vide its letter dated 10-9-2013 duly responded and verified the queries and, thereafter, the said officer through public notice published in Daily Jang, Daily Dawn and Daily Hilal-e-Pakistan all dated 13-9-2013 called objections before granting pre-construction permission and accorded its approval for proposed building plan. It appears that in consequence to such public notice Messrs Siddiq Mirza & Co., Advocates Supreme Court of Pakistan, filed detailed objections, which were duly responded by the respondents Nos.8 and 9 and in a meeting convened on 10-10-2013 at 2:00 p.m. In Board Room of Cantonment Board Clifton the Executive Officer in presence of all concerned including Mr. Siddiq Mirza as objector and the representatives from the other departments including representative of the builders addressed all the objections so raised. The record further reveals that the Executive Officer, thereafter, vide his letter dated 27-12-2013 granted permission for pre-construction activity in respect of the subject property and, thereafter, vide his letter dated 7-1-2014 accorded provisional approval of the proposed building plan. Perusal of the proposed building plan further negates the apprehension of parking as pleaded by the petitioner in fact second, third and fourth floors, have been exclusively provided for parking. The Cantonment Board Clifton finally on 31-1- 2014 confirmed the approval of the proposed building plan on the subject property. The record further reveals that no objection from Karachi Water and Sewerage Board, KESC and Civil Aviation Authority have also been obtained, even Initial Environmental Examination (IEE) from the Environment Protection Agency has been obtained on 28-1-2013, which has thoroughly examined the traffic impact upon the construction of the subject plot.
12. ' Nothing has been brought to our attention that the process provided by the City District Government Karachi regarding change of land use has not been adopted or has been violated.
13. Even it is not disputed that City District Council Resolution No,383 dated 6-1-2004 by which Chaudhry Khaliq-uz-Zaman was open for commercial construction was in violation of any bye- laws of the City District Government Karachi. The contention that now the width of Chaudhry Khaliq-uzZaman Road after construction of flyover has reduced to 30/40 feet does not appeal to our mind for the simple reason that the purpose for prohibiting commercialization on the road of less than 100 feet could only be that, such road would not be able to take the traffic influx which would increase upon such commercialization and it cannot be denied that the purpose of constructing flyover is to reduce the traffic load and even if such flyover has reduced the width of the road, such flyover take the traffic influx by reducing the load of traffic on the road and provides more convenience for the commuters and of course is always a part of the road, therefore, it cannot be held that the reduction of the width of a road due to construction of flyover would be a clog on commercialization.
14. ' As to the case-law referred to by Mr. Haseeb, in the case. Of Nighat Jamal (supra) no doubt it was laid down that after commercialization of a road the proponent of a project who intends to take the benefit of such commercialization had to follow the process in terms of Article 3 of "Change of Land use Bye-laws, 2003" and it would be within the domain and competence of City District Government to decline the commercialization in case the objection of the public-at-large were upheld, however, in the instant case nothing has brought to our notice that the commercialization is against bye-laws 2003 or that the objections were upheld.
15. ' In Ummatullah's case though the conversion of a residential plot into CNG was declared to be without lawful authority but upon coming to the conclusion that Change of Land use and Master Plan Bye-laws, 2003 were neither invoked nor were adhered to.
16. Regarding short fall in public utilities and services the apex Court in the case of Jawed Mir Muhammadi v. Haroon Mirza (PLD 2007 Supreme Court 472) after examining its announcement in the cases of Abdul Razzak as well as Ardeshir Cowasjee and others v. Karachi Building Control Authority and others referred to by the counsel for the petitioner has laid down 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-cum-commercial provided that the provisions relating to the conversion of plot and commercialization contained in the laws/regulations are complied with and the concerned authorities undertake to provide new infra-structure for provision of A enhanced water supply, electricity, gas, provide better sewerage system, roads and ensure enjoyment of peaceful life to the residents of the locality. In the instant case also respondents have placed on record the No Objection from Karachi Water and Sewerage Board as well as Karachi Electric Supply Corporation and the environmental impact of such construction has been taken care of by the Environmental Protection Agency by issuing Initial Environmental Examination (IEE).
17. ' As to the remaining case-law relied upon by the learned counsel for the petitioner, we have examined each and every judgment though all the referred judgments pertain to original civil jurisdiction of this Court but in each case either violation of procedure in respect of conversion or non-observance of rule or regulations was tentatively established.
18. ' As to the issue of notice, and the contention of Mr. Haseeb that public notice in the newspaper was not a sufficient notice as after the introduction of electronic media no one prescribed newspapers, or at least not the petitioner and notice in person should have been given before converting the status or granting permission for construction of multistory building. We are not impressed with the submission of the learned counsel as the bye-laws of the City District Government Karachi in Article 3 provide the procedure for issuance of notice and lays down that "An advertisement having A-5 (6" X 8") size change of land use shall be got published in two (2) different newspapers for public awareness whereby it will be asked to submit objection(s) before concerned union Administration/Master Plan Office within 15 days". Nothing has been pleaded that the advertisement so provided under the bye-laws calling for objection was not issued before converting the status of the plot. As to issue of individual notices informing the neighbours the intent of conversion, in our opinion neither the proposition appears to be feasible nor a requirement of procedure entitling the petitioners to an interim order. No case for interim injunction restraining the respondents from carrying out construction on the subject plot strictly in accordance with the approved plan is made out. The application therefore, is dismissed, however, we will direct the Cantonment Board Clifton to ensure that the construction so raised by the respondents Nos.8 and 9 should be strictly in accordance with the Rules, Bye-Laws and the permission so accorded.