' MUHAMMAD JUNAID GHAFFAR, J.---Through instant petition the petitioner has challenged the actions of the respondent Nos.1, 2 and 3 for allowing the alleged conversion of the plot from a residential bungalow to .a commercial-cum-residential project as well as the plan approved thereon in respect of Plot No, 9, Civil Lines Quarter No, 7, Karachi. It is stated that the petitioner which is a Banking Company under the Banking Companies Ordinance, 1962 is carrying on the business of Banking as defined in section 7(1) of the Banking Ordinance, 1962 and is the owner of Plot No, 17, Civil Lines Quarter No, 6, Karachi. The petitioner is aggrieved by the construction of a high-rise building having ground plus 17 storeys on Plot No, 9 Civil Lines Quarter No, 7, Karachi and has submitted that the category of plot in question is residential and its conversion to a commercial category is illegal and unlawful. It is further stated that the Town Planning NOC issued by the respondent No,2 is not in conformity with the original lease conditions and no Town Planning Approval has been obtained either from respondent No, 1 or the respondent No,
3. According to the petitioner, the regulations as contemplated in the Karachi Building and Town Planning Regulations, 2002 ("KB&TPR") have not been complied with and have been violated at the time of granting approval of the plan in respect of subject plot, particularly regulations No,24-2.4, 24-2.5 and 24-6.1.
It has been further alleged that Regulation 3-3.1.1, 3-3.1.2 as well as Regulation 25-1.5 have also been violated while granting approval by the respondents. According to the petitioner, this is a case of illegal conversion of land use as originally the plot was for construction of ground plus one storey and now it has been unlawfully converted into residential-cum-commercial category without any permission by the lessor or respondent No 1 and further no approval from respondent No, 7 has been obtained for such conversion as required under section 12 of the Pakistan Environmental Protection Act, 1997.
2. Mr. Abdur Rehman learned counsel for petitioner has contended that the conversion of the plot in question by the respondents from residential bungalow to a flat site without complying with the legal procedure and the act of allowing the construction of a multi-storeyed building on subject plot by respondents is illegal, ultra vires and void. It is further contended that in view of the restrictive covenants contained in the lease executed in favour of the petitioner by the respondents No,1, the version of a residential bungalow to that of a flat site in favour of the respondent No,8 is not permissible udder the doctrine of promissory estoppel. Per learned counsel, such conversion cannot be done under the Master Plan Byelaws 2003 as it is permissible only on such roads which have been declared to be commercial by the respondent No,
1. It is further contended that the conversion of the plot from residential to residential cum-commercial cannot be done without obtaining an Environmental Impact Assessment (EIA) as required under section 12 of the Pakistan Environmental Protection Act, 1997 ("1997 Act"). Learned counsel also referred to Sindh Building Control Authority's letter dated 14-3-2013 in which the category of plot has been shown as residential cum commercial and contended that the SBCA is not the appropriate authority to decide the category of the plot and it is only the respondent No, 1 (KMC) which can allow any conversion of the plot. Learned counsel for the petitioner referred to Regulation No, 18-4 of KB&TPR and contended that it is the Master Plan Group of Offices (MPGO) as defined in Regulation 2-78 of the said Regulations, which has the authority to allow any such conversion. Learned Counsel relied upon the counter affidavit filed by the respondent No, 1 and contended that as per record of respondent No, 1 the category of plot is residential and not residential-cum-commercial. It has been further contended that Regulation 18-4 provides a complete mechanism for change of land use and the respondent No, 8 has not followed Regulation No, 18-4.2.2 for conversion of the plot.
Learned counsel then referred to Regulation 25-2 and specifically Regulation 25-9.2 and 25-9.3 of KB&TPR and contended that subject plot does not fall within the old city areas as it is only a portion of Civil Lines Quarters which is mentioned in Zone "C" under Regulation 25-9.3(g), therefore per learned counsel, the Floor Area Ratio ("FAR") as permitted under Regulation 25-9.3.2 i,e,1:4 will not be applicable and instead the subject plot falls under Zone "B" and the FAR of 1:2 as defined under Regulation 25-9.2.2 would be applicable. According to learned counsel, even otherwise the SBCA has no authority to formulate these regulations and it is only the lessor or the respondent No, 1 who can determine and allow any such conversion and so also formulate regulations in this regard.
Learned counsel further submitted that the Town Planning of the City is the domain of respondent No, 1 and not of SBCA. Per learned counsel even otherwise, the permissible FAR is 1:2 in view of the Regulation 25-4 of KB&TPR as the same is applicable for a flat site category. It was next contended that respondent No, 8 is violating the compulsory open space requirement between two blocks as required under Regulation 25-1.5. It was also contended that the respondent No, 8 is also violating regulation 25-2.2., as the height of the building is also beyond permissible limits. Learned counsel then referred to a letter dated 30-11-2012 issued by the office of the Deputy Commissioner, South Karachi and contended that as per this record an old bungalow existed on this plot and contended that no commercial activity could be carried out at such premises. It was next contended by the learned counsel that though in the same area, construction of highrise buildings have been allowed but .Insofar as this plot is concerned, no conversion has been allowed by the respondent No, 1 . Per learned counsel each plot is to be dealt with individually and the case of respondent No, 8 is distinguishable from the history and record of other adjacent plots. Learned counsel also referred to the provisions of SBCA 1979 including sections 4, 7-A, 18 and 21-A and contended that Town Planning is to regulate the building plan and by no stretch of imagination this could be applied to the conversion or status of a plot which is in the exclusive domain and authority of the respondent No,
1. Learned counsel also contended that there have been serious violations of the 1997 Act and no EIA has been obtained by the respondent No,
8. In support of his contention, the learned counsel for, the petitioner has relied upon the reported cases of (Zaheer Ahmed Chaudhry v. City District Government, Karachi) 2006 YLR 2537, (Mst. (Jmmatullah v. Province of Sindh) PLD 2010 Karachi 236, (Province of East Pakistan v. Nur Ahmed) PLD 1964 SC 451 (Nighat Jamal v. Province of Sindh) 2010 YLR 2624, (Faroog Hamid v. LDA & others) 2008 SCMR 468 and (Shehri C.B.E. v. Government of Pakistan) PLD 2007 Karachi 293.
3. Conversely, Mr. Khawaja Shamsul learned counsel for respondent No, 8 has vehemently opposed the contention of learned Counsel for the petitioner and also raised an objection with regard to the maintainability of instant petition, which according to learned counsel, has been incompetently filed, as the Power of Attorney, on the basis of which instant petition has been filed, has already expired hence the petitioner is not even entitled to argue instant petition. It was further contended by the learned counsel that the instant petition suffers from laches and constructive res judicata as the same petitioner had already filed several petitions on the same grounds, in respect of other adjacent plots and such petitions have either been dismissed or have been withdrawn after compromise between the parties unconditionally, therefore, the petitioner cannot agitate the same cause through instant petition. Per learned Counsel, the same petitioner had earlier filed a Constitutional Petition bearing No, D-3851 of 2012 which contained the similar facts as well as law, whereas even the contents of such petition as stated in the memo of that petition are verbatim the same as are raised in the instant petition. Per learned counsel, the said petition was dismissed by a Division Bench of this Court vide Order/ Judgment dated 18-7-2013 and all the issues raised in the instant petition have already been answered by this Court against the petitioner. Per learned counsel, the plot in question is situated within the old area of the City and is not required to be governed by the provisions as referred to by the learned counsel for the petitioner. On the contrary, per learned counsel, it is to be governed and regulated under the conditions of the lease granted by the Board of Revenue, Government of Sindh, which is the lessor of this plot. Per learned counsel, the category of the instant plot is H-3/1 which has been categorized as residential cum commercial and therefore, there is no requirement for seeking conversion of the instant plot, either by the respondent No, 1 or the MPGO, as they are not the lessors of the instant plot. Per, learned counsel, instant plot is categorized under Zone "C" of Regulation 25-9.3.1 and 25-9.3.2 of KB&TPR and the permissible FAR is 1:4. It has been further contended by the learned counsel that in the same area, i.e Civil Lines Quarter, high-rise buildings have already been constructed and specifically referred to Plot Nos. 18/2, Civil Line Quarter No.6, Karachi, on which a building namely'
"ABEEDA TOWERS" has been constructed whereas, in respect of that construction, the present petitioner on identical grounds, had earlier filed a Petition bearing No. D-2343 of 2007 (Standard Chartered Bank Limited v. City District Government and others) which was unconditionally withdrawn by the petitioner on the basis of a compromise, vide order dated 19-3-2009 therefore, per learned Counsel, the doctrine of waiver, acquiescence and constructive res judicata is applicable against the petitioner, hence, the instant petition is liable to be dismissed. Learned counsel further relied upon another judgment dated 18-7-2013 passed by a Division Bench of this Court in the case of Standard Chartered Bank Limited v. Karachi Municipal Corporation in C. P. No. D-3851 of 2012, which according to learned counsel was also in respect of a similar type of Plot bearing No 18/1, Civil Lines Quarter No.6, Karachi, in the same vicinity. Learned Counsel also referred to an Order dated 30-10-2013 passed' in C.P. No. D-3496' of 2013 (Ava Ardeshir Cowasjee and others v. Karachi Municipal Corporation and others) and contended that though this petition was filed by some other petitioner, but the controversy raised therein was similar to one which has been raised through instant petition. Per learned counsel, the same learned counsel who is appearing in this petition had appeared in the said petition and had made a statement before this Court that the petition involves same legal question of law which was also involved in Standard Chartered (Supra) which has been dismissed by this Court and prayed that in view of such position this petition may also be dismissed, and on the basis of such statement of learned counsel,, a Division Bench of this Court had dismissed the said petition. Per learned counsel, in view of such position, the learned counsel for the petitioner cannot justify his conduct while once again arguing the identical legal issues without disclosing the fate of earlier petitions on the same subject controversy. Per learned counsel, respondent No. 8 has complied with all the requisite codal formalities while obtaining approval of plan and NOC from respondents and has invested a huge amount in the construction of the said project and has already sold 39 apartments which has created third party interest in their favour, however, in view of an ex parte stay order dated 31-5- 2013 obtained by the petitioner by misrepresenting the facts, respondent is suffering huge losses on daily basis. Learned counsel has referred to a letter dated 15-11-2001 issued by Member, Land Utilization, Board of Revenue, Government of Sindh Karachi, and contended that the Sanad in respect of the instant plot, as well as other adjacent plots, is in the category of H-3/1 and contended that the original lease was not restricted to the residential categoryal one and therefore it does not require either any land use conversion nor required to any charges for such conversion.
Learned Counsel - further contended that since the plot 'in question was leased without any condition i.e. The terms and conditions do not require levy of conversion charges for commercial use, hence the lessee of the plot can use it for commercial purpose without paying any increased rent/conversion charges. Learned Counsel further submitted that the project being constructed by the respondent No.8, is purely a residential/flat site project and no commercial construction was intended to be raised, except the provision of a convenience/grocery store exclusively for the use and benefit of the residents of the project, which nowadays is not considered to be a commercial activity, rather is to be termed as a provision for exigencies of the residents of the said project.
However, the learned Counsel on instructions submitted that if directed, the respondent No.8 isready to drop the provision for such construction. Learned counsel further referred to a judgment dated 9-8-2001 passed in C.P. No. D-1711/1999 (Messrs Murtaza Builders v. Karachi Buidling Control Authority and others) and contended that this case was also in respect of a plot within the same vicinity i.e. Plot No. 20/1, Civil Lines Quarters, Karachi, and all the objections raised in the instant petition have already been answered by this Court in the said judgment and further contended that the respondent No. 8 was also entitled to be accorded the same treatment as has been accorded to owners of various other plots in the same vicinity and therefore the instant petition is liable to be dismissed. In support of his arguments learned Counsel for respondent No.8 has relied upon the- case of Zaheer Ahmed Chaudhry v. City District Government, Karachi (2006 YLR 2537), R.G. Sehwani Co-operative Housing Society Ltd., v. Haji Ahmad and others (PLD 1983 Kar. 11), Mir Sahib Jan v. Janan (2011 SCMR 86), Ardeshir Cowasjee and 7 others v. Karachi Building Control Authority (KBCA) through Chief Controller of Buildings, Karachi and 3 others (PLD 2006 Kar. 63) and Jawad Mir Muhammad and others v. Haroon Mirza and others (PLD 2007 SC 472).
4. Mr. S. Sultan Ahmed learned counsel appearing on behalf of respondent No. 1,though admitted that the respondent No. 1 is not the lessor of the plot, but submitted that the chant e of land use is the prerogative of the respondent No. 1 and as per their record no application has been made by the respondent No. 8 for any such conversion. Learned counsel contended that the respondent No. 1 is the appropriate authority for categorization/conversion of any plot on payment of appropriate charges. He has referred to section 40 as well as sectionl92 of the Sindh Local Government Ordinance, 2001 (SLGO) and contended that the Council has approved the Master Plan Byelaws 2003 for change of land utilization and in view of this, per learned counsel, it is the respondent No. I which has the exclusive authority to allow conversion of any plot in the city of Karachi. Learned counsel also referred to Regulation 18-4.2.1 of (KB&TPR) and contended that MPGO is the appropriate authority to allow any such conversion. Learned counsel further contended that though instant petition does not merit any consideration, however, prayed that directions be issued to the respondent No.8 to pay/deposit the requisite charges of conversion of the plot in question whereafter, respondent No.1 will have no objection if such construction is raised on subject plot. In support of his submissions, the learned counsel referred to the case of Sheikh Naeem Ahmed and others v. Province of Sindh and others (2006 CLC 1231), Jawad Mir Muhammad and others v. Haroon Mirza and others (PLD 2007 SC 472), Youth Enrichment Network (Pvt.) Limited v. Karachi Building Control Authority through Chief Controller of Buildings and another (2009 CLC 484), Ghulam Haider v. Muhammad Ayub (2001 SCMR 133), Nighat Jamal v. Province of Sindh and others (2010 YLR 2624), Mst. Ummatullah through attorney v. Province of Sindh through Secretary Ministry of Housing and Town Planning, Karachi and 6 others (PLD 2010 Karachi 236) and an unreported judgment in the case of Abdul Wakeel v. EDO Revenue Karachi and others in C.P. No. D-216 of 2009.
5. Ms. Afsheen Aman learned counsel appearing for respondent No. 2 (SBCA) submitted that the plot in question falls under Zone "C" vide Regulation 25-9.3.1 and 25-9.3.2 and the building plan has been approved as residential-cum-commercial with FAR of 1:4.
6. Though, Board of Revenue, Government of Sindh, was not impleaded as a party by the petitioner in the instant petition, however, in view of the arguments of learned Counsel for the parties and for the reason that respondent No. 8 claimed that Board of Revenue is actually the lessor of subject plot, and not the respondent No. 1, therefore on 16-12-2013 we deemed it appropriate to issue notice to Board of Revenue at the request Mr. Ghulam Shabbir R. Shaikh learned Advocate for Board of Revenue, Government of Sindh, who was present in Court in some other case, Accordingly on 23- 12-2013,Mr. Ahmed Pirzada learned counsel for the Board of Revenue had shown appearance and comments were filed on their behalf,. Copy of which was supplied to all the counsel including counsel for the petitioner. The Board of Revenue has taken a stance that they are the lessors of the subject plot and have renewed the lease of the subject plot for a further period of 99 years from 1- 8-1962 to 31-7-2001 on 1-10-2012 after receiving necessary charges by the petitioner. It has been further stated that as per their record, the category of the plot is H-3/1, which is categorized for Residentialcum-Commercial and does .Not require any conversion of the category of the plot in question as alleged by the petitioner or the learned Counsel for respondent No.l. Learned Counsel for Board of Revenue in fact opposed the petition and supported the stance of respondent No.8 on the factual as well as on legal plane.
7. Mr. Abdur Rehman learned counsel for petitioner while exercising his right of rebuttal has referred to a current Power of Attorney filed through a statement before this Court and contended that the subsequent power of attorney is in continuation of the earlier Power of Attorney and as such all the acts purported to have been done under the previous Power of Attorney, stood ratified by the subsequent Power of Attorney. Learned counsel also challenged the contention of the learned counsel for respondent No. 8 with regard to the category of the plot as certified by the Board of Revenue through its Sanad dated 4-12-2013 and contended that initially the category of the plot was H-3 and not H-3/1 and the record of all the lands and ownership is being maintained by the respondent No. 1 since 1947 and therefore, the Board of. Revenue has no lawful authority to determine any category of the plot.
8. We have heard all the learned counsel and have perused the record and the case-law relied upon by all the counsel. By consent the instant petition is being decided at Katcha peshi stage.
9. At the very outset, we had asked , the learned counsel .For the petitioner that as to how and in what respect, the judgment dated 18-7-2013 passed in Standard Chartered (Supra) is not applicable in. The instant petition. Learned counsel for petitioner, though admitted that some what similar controversy was involved in Standard Chartered (Supra), but contended that there are some other issues which have been raised in the instant petition which were not raised earlier, hence not covered by the judgment of this Court in Standard Chartered (Supra). To appreciate this contention, we have meticulously gone through the said judgment in this context, and have examined the contents of the memo of both the petitions as the memo of petition in the case of Standard Chartered (Supra) was placed on record through a statement dated. 12-11-2013 by the learned counsel for respondent No. 8 (at page 511 of part 2 of the file) and have found that in fact, the contents of the memo of instant petition are verbatim similar to the contents of the memo of petition in the case of Standard Chartered (Supra) which already . Stands dismissed by a Division Bench of this Court vide judgment/order dated 18-7-2013. The precise controversy, which was raised in Standard Chartered (Supra) and as has been raised in the instant petition are exactly the same, that is, whether the respondent No: 8: is entitled to construct a ground plus 17 storied apartment building on Plot No, 9, Civil Lines Quarter No. 7, Karachi as according to the petitioner such construction of the building would amount to a change of land use from residential to a flat site and thus it would violate the KB&TPR, and secondly such construction was being carried out by the respondent No. 8 without obtaining an EIA (Environmental Impact Assessment under section 12 of the 1997 Act. Learned counsel for the petitioner could not satisfy this Court as how the facts and the legal issues involved in the instant petition are distinguishable from the facts and the controversy as raised in the case of Standard Chartered (Supra). We may observe that a Division Bench of this Court in the said judgment, after a very detailed and elaborate examination of various provisions of relevant law, rules and regulations as well as the entire case-law on the subject as relied upon by the parties has decided both the issues against the. Petitioner. With regard to the objection that the builder was required to obtain an EIA the Division Bench of this Court concluded that the petitioner failed to make out a case requiring the respondent/builder to obtain an EIA in terms of section 12 of the 1997 Act. It will be advantageous to reproduce the relevant finding of the Division Bench hereunder:--
9. "In our respectful view therefore, it would be seriously misleading to read the 1997 Act without keeping in mind that the legislature has sought to achieve two objectives. On the one hand, it has balanced the competing (and perhaps to a ' certain extent conflicting) demands of describing environmental issues in broad and expansive terms and yet keep the requirements being imposed firmly anchored within a manageable framework at any given time and for the time being. On the other hand, it has also ensured that the anchor so provided does not become an unbreakable (and therefore unacceptable) chain that prevents a dynamic response to ever changing circumstances.. The learned Division Bench in SHEHRI C.B.E. v. Government of Pakistan and others PLD 2007 Karachi 293 was perhaps alluding to this vital balancing act when it observed: "Indeed, as rightly submitted by the Attorney General, it is essential to maintain a balance between Industrialization and ecology and that development and environmental protection must progress together. It is in consonance with the above that PEPA, 1997 has been enacted and enforced and thus it mandate should be honoured in its true letter and spirit." (pg. 309)
10. In our view, the 1997 Act and the Environmental Regulations must be read, interpreted and applied in the foregoing manner.
' The interplay between the definitions, subsection (1) and subsection (6) constitutes a dynamic equilibrium that provides certainty at any given time as to what projects require the filing of an IEE or EIA, and also flexibility over time to cater for changing circumstances. It may also be noted that the requirement that the executive agency must adopt a dynamic and proactive approach and periodically update the regulations is a statutory duty. Should the agency fail to discharge it properly, an order in the nature of mandamus may lie in appropriate circumstances to (e.g.) include (or even exclude) a category of project in (or from) the regulations, or to shift an existing category from the first to the second schedule or vice versa. It will be seen later in the judgment that this aspect is of some relevance in understanding the cases cited before us."
10. Thereafter the Court discreetly examined various judgments relied upon by the learned counsel for petitioner (same have been relied upon in the instant case) as reported in SHEHRI C.B.E. V.
GOVERNMENT OF PAKISTAN AND OTHERS (PLD 2007 KARACHI 293), NIGHAT JAMAL VS. PROVINCE OF SINDH AND OTHERS (2010 YLR 2624), SHERI-CBE AND OTHERS VS.LAHORE DEVELOPMEIVTAUTHORITY AND OTHERS (2006 SCMR 1202), unreported case of CLARISSA JAMES AND ANOTHER VS.S.I.S. BUILDERS AND DEVELOPERS AND OTHERS (CP No D-2924/2011), FAROOQ HAMID AND OTHERS VS.L.D.A. AND OTHERS (2008 SCMR 468). It would be advantageous to reproduce the observations of this Court whereby the application and ratio of these judgments was held not to be applicable on the instant controversy:--
13. "The case-law cited by learned counsel for the petitioner may now be considered. We will first take up the decisions of this Court, in chronological order. SHEHRI C.B.E. v. Government of Pakistan and others PLD 2007 Karachi 293 involved a co-generation project, comprising of a 94 MW power plant along with a three million gallons a day (MGD) desalination plant. It was contended by the proponent of the project that it only needed to file an IEE and not an EIA, and this contention was accepted by the environmental agency. This decision was challenged by the petitioner NGO. It was held by the learned Division Bench that since the co-generation project had the desalination plant as an integral part of it it came within the ambit of paragraph F of the second schedule, and hence an EIA was required. This case provides no assistance to the present petitioner. In Shamsul Arfin and others v. Karachi Building Control Authority and others PLD 2007 Karachi 498 ("Shamsul Arfin"), the issue was in relation to a residential complex being built on the relevant plot. One of the grounds taken by the petitioners was that approval of the environmental agency was required for the project, although, with respect, it is not clear from the report whether this was contended to be an IEE or an EIA, and the specific provision from the schedules to the EnvirOnmental Regulations that was invoked (if any) was also not identified. Be that as it may, the learned Division Bench observed as follows (pg. 506): "In our view the petitioner's argument that permission from Environment Protection Agency is to be first sought has no force for the reason that firstly it is a case of construction of a residential building. Secondly, when the building plans are submitted to KBCA, they are to be vetted by the master Plan and Environmental Control Department also. This takes case of the environmental effect of the building proposed to be constructed. Therefore, the question of first seeking permission for a residential building from Environment Protection Agency does not arise at all."
' Clearly, this decision does not assist the petitioner's case. In Nighat Jamal v. Province of Sindh and others 2010 YLR 2624 ("Nighat Jamal"), the issue was the "conversion of a residential plot into commercial and construction of a multistory residential-cumcommercial building thereon" (pg.
2627). One of the objections taken was that the permission of the environmental agency had not been obtained under section 12 of the 1997 Act. The learned Division Bench noted the petitioner's objection that the change of land use (from residential to commercial) came within the definition of "project" and that no permission had been obtained from the environmental agency by the proponent of the project (pg. 2642). Section 12 was referred to, and the definition of "project" in section 2(xxxv) was reproduced in extenso. It was observed as follows (idem.): "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."
' Reference was made to a leave granting order of the Supreme Court reported as SHERI-CBE and others v. Lahore Development Authority and others 2006 SCMR 1202, and it was further observed as follows (pg. 2643; emphasis supplied): "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."
' In our respectful view, this decision also does not advance the petitioner's case. The reason is three-fold. Firstly, it was held by the learned Division Bench that the conversion of the plot from Residential to commercial constituted a change of land use and brought it within the definition of "project". The position' in the case at hand is that the subject property is not being converted from residential into some other category. Rather, the grievance is that a residential plot cannot be used for construction of an apartment building, which is not the same thing. (This is of course the second ground taken by the petitioner, ' and is dealt with below.) Secondly, the learned Division Bench did not, in the circumstances, give a definite finding. It specifically stayed its hand on account of the leave granting order of the Supreme Court. Thirdly, and in our respectful view most importantly, it appears that the attention of the learned Division Bench was not drawn to subsection (6) of section 12 and its central and crucial role in relation to the application of the other subsections, in particular subsection (1). We would also respectfully draw attention to paragraph I of the First Schedule to the Environmental Regulations and paragraph H of the Second Schedule thereto. It may be that the urban development projects referred to therein may include the sort of project that was before the learned Division Bench. However, these paragraphs would certainly not apply to the project at hand in the present case. The last decision of this Court referred to (we would note, very fairly) by learned counsel was Clarissa James and another v. S.I.S. Builders and Developers and others (unreported, supra). This concerned the construction of a high rise building project pf a residential nature. The principal objection taken was that permission under section 12 had not been obtained. The learned Division Bench was referred to both Shamsul Arfin and Nighat Jamal. The latter decision was distinguished on the facts and the former was applied, with the result that the petition was dismissed.
14. Learned counsel for the petitioner also relied on Farooq Hamid and others v. L.D.A. And others 2008 SCMR 468. The matter came to the Supreme Court by way of a petition for leave to appeal against a decision of the Lahore High Court, which had arisen out of a suit filed in the civil courts at Lahore. The plaintiffs, who were the petitioners before the Supreme Court, alleged that a multi- storeyed shopping-cum- residential plaza was being constructed on the plot adjacent to their property, and that excavation work carried out for the said purpose had caused "severe lateral movement" of the land as a result of which their house had suffered material structural damage. It was alleged that the construction of the plaza, inter alia, violated section. 12 of the 1997 Act. An application was made for interim injunctive relief, which was refused by the trial court. An appeal was preferred to the High Court, which also failed and the plaintiffs therefore petitioned the Supreme Court. As stated therein, the builder described his plaza as a seventeen storey structure "comprising shopping arcades and residential apartments etc. And to cater for the parking requirements of the occupants and of the users of the said building, he also intended to construct four underground basements as parking lots" for which purpose he had to go as. Much as 50 feet below ground (pg. 471). The Supreme Court observed as follows (idem.): "6. The last two decades had witnessed a new culture in the city of Lahore i.e. Construction of high-rise buildings comprising of shopping complexes, residential apartments and even cinema houses etc. The main Boulevard of Gulberg, for instance, which was: once a purely residential area appears to have become a focus of multi-storeyed commercial buildings. Each residential plot on the said main Boulevard comprised of 8 to 10 Kanals of land wherein 10 to 15 persons including the owner and the servants resided. Presently, on each such plot, multi-storeyed buildings have been and are being built which are used by hundreds of persons every day i.e. The ones living there and the ones visiting the shopping arcades etc. Provided therein. Needless to say that such a huge multiplicity of users of each of the said plots is likely to cause problems of immense magnitude, inter alia, in the matter of capacity of the roads catering for the resultant traffic; the parking space for the vehicles being used by the said users; the availability of adequate water supply catering for such a large number of persons; the capacity of sewerage facilities for draining the water and the sewerage caused by such users and so on. Before the advent of this new era of multi- storeyed plazas, single storeyed or at the most two storeyed houses existed on the said plots which were used by the ones constructing them or the tenants inducted therein. On account of the comparatively small nature of the construction raised and the smaller number of individuals using the same, the structural stability of the said houses was never a serious issue."
' It was further observed as follows (pg. 473): "11. As has been noticed above, the matter in hand does not remain confined only to the building in question being raised by respondent No.6 and is in fact a matter which concerns the publicat- large and all the multi-storeyed buildings being constructed at least in the city of Lahore. On our call, the L.D.A. Has submitted a tentative list of more than one hundred buildings comprising of three storeys and more which were being constructed in various parts of the city of Lahore including the areas in the old city like Shah Alam Gate etc. This list submitted by the L.D.A. Is, however, not exhaustive or conclusive and the number of such buildings could be much more.
12. The situation is alarming. Such a large number of multi-storeyed high-rise buildings are being constructed all over the city without ensuring compliance of security measures; proper supervision' and adherence to the law regulating the subject and the same are thus, a serious hazard to the safety of the people and the properties. Since the Authority obliged to take steps in the matter has failed to do so, therefore, we feel compelled to take appropriate steps in the larger interest of the public who have a constitutional right to the protection of their lives and properties."
' The Supreme Court gave certain directions with respect to the plaza whose construction had been challenged in the civil suit, by consent of the parties before it. It also directed, more generally, as follows (pg. 474): "15. The L.D.A. Is directed to carry out a similar exercise with respect to the other multi-storeyed buildings being constructed in the city by hiring some duly qualified consultants who would also submit their report with respect to each of the said buildings including a report whether the same were being constructed in compliance with all the rules and regulations governing the subject including the compliance of the provisions of the Pakistan Environmental Protection Act of 1997."
' It may be noted that the decision was not the final judgment in the case, as is clear from the last paragraph thereof.
15. In an earlier part of the cited decision, in para 8 (pg. 472), the Supreme Court had observed as follows: "The provisions of Pakistan Environmental Protection Act of 1997 demand environment impact assessm ent of each such project before any plan for the construction of the same could be sanctioned". Understandably, learned counsel for the petitioner placed a great deal of emphasis on this sentence. However, with respect, it has to be read in the context of the decision as a whole.
That context, in our respectful view, is provided by the passages that we have cited at length above (see, e.g., the first sentence of para 11 thereof): In our respectful view, the Supreme Court, in the exercise of its plenary jurisdiction (and not only its appellate jurisdiction under Article 185(3)), directed the environmental agency and/or LDA to take action with regard to a certain category of project, namely, multi-storeyed, high-rise buildings being constructed in the city of Lahore. This, we would respectfully suggest, was tantamount to a direction to the environmental agency to, in effect, regard this category of project as included in the regulations framed under and for purposes of subsection (6) of section 12. In other words, in our respectful view, it was a direction in the nature of mandamus for the environment agency to dynamically discharge its statutory duty along the lines indicated in para 10 hereinabove. In our respectful view, this decision does not therefore advance the petitioner's cause, since the case presently at hand is limited to a consideration whether the contesting respondents' apartment building requires the filing of an EIA within the framework of the Environmental Regulations as they stand at present and in terms of the paragraphs of the Second Schedule that have been relied upon. In view of the foregoing discussion therefore, we conclude that the petitioner has been unable to make out a case on the basis of the 1997 Act.
11. The second issue regarding construction of a highrise building on a residential plot was also examined in the same judgment in the following manner at page 15:-
16. "We turn to consider the second ground, which requires a consideration of Farrokh Captain and the 2002 Regulations.- Paragraph 4 of Schedule D to Part-II of the 1979 Regulations, which was considered in Farrokh Captain, and Regulation 18-4.2 of the 2002 Regulations have been reproduced above (see paras 2 and 3). Reference has also been made to the procedure laid down in Regulation 18-4.2 for conversion of a residential plot to any other use. The corresponding provision in the 1979 Regulations was also considered in Farrokh Captain. This was paragraph 3 of Schedule D to Part-II. The learned Division Bench accepted the submission by counsel that "as long as the use for residential purposes is retained", the requirements of paragraphs 3 and ,4 would not be engaged. It was sought to be argued that bungalows, town houses and flats were separately categorized for residential use in the 1979 Regulations, and therefore the use of a residential plot for apartments or flats would require paragraphs 3 and 4 to be applied. As to this, the learned Division Bench observed that "if the lawmakers intended to treat use from one category to another category of residential use as conversion, they could have simply done so by designing para 4 of Schedule 'D' Part-II, on the same [pattern] as para 3". When the submissions made by learned counsel for the petitioner in the present case are compared with what was argued in Farrokh Captain, the arguments are (subject to what is stated below) remarkably similar. We have already noted the close similarity between the provisions of the 2002 Regulations and the 1979 Regulations.
With respect, we have been unable to detect any substantive difference as would permit us to take a view different from that which has already found favour with this Court in Farrokh Captain. This is especially so because it is not disputed before us that the construction underway at the subject property is of a purely residential nature, i.e., comprises of 16 flats for such use and accommodation.
17. The difference sought to be made out on the basis of Regulations 25-2 and 25-4 is, with respect, not relevant for present purposes. Chapter 25 is concerned with zoning regulations and area standards and it is therefore not surprising that it has divided the plots into various" categories such as commercial, industrial, residential and flats. But that does not address the question that is before us. We may note that it was not contended by learned counsel for the petitioner that there were flat sites specifically demarcated in or for the area where the subject property is located. In our view, the present matter stands covered by Farrokh Captain and the issue at hand ought to be answered in the same manner in relation to the 2002 Regulations as was held in respect of the 1979 Regulations. We hold accordingly.
12. On careful examination of the above judgment as well as the memo of the petition in the said case, we are of the opinion that almost all the pertinent legal issues raised on behalf of the petitioner in the instant petition, have duly been dealt with and decided in the aforesaid judgment against the petitioner. To our dismay and concern, in fact, the petitioner in the instant case and in the case of Standard Chartered (Supra) is the same. It seems that after passing of the judgment in Standard Chartered (Supra) the learned counsel for the petitioner who had raised the same and almost identical issues in the instant petition, tried to ameliorate its case by making a debilitated attempt to distinguish the ratio of the judgment in the case of Standard Chartered (Supra) and also by raising altogether fresh questions which were not even part of the pleadings. In our view, the learned counsel for the petitioner has miserably failed to make out a case of distinguishable facts and law. Though, we are of the view that a party cannot be permitted to argue the case beyond its a. Pleadings to the disadvantage of other party, however, as a matter of sheer indulgence, we had allowed the learned counsel for petitioner to argue the case even on the issues which were not even part of the pleadings nor such controversy was agitated through instant petition before us. However, such concession was only granted as an opportunity to the learned counsel to assist this Court in proper dispensation of justice and to see that as to whether, such issues were not decided in the judgment dated 18-7-2013 passed in Standard Chartered (Supra).
However, after examining the facts of both the petitions and from perusal of the decision in the case of Standard Chartered (Supra) we are of the opinion that all the issues raised before us by the learned counsel for petitioner have been eloquently answered by the learned Division Bench in the said judgment, whereas the learned Counsel for the petitioner has failed either to raise any new plea or to distinguish the said judgment which in fact covers the controversy in all fours and constitutes a binding precedent for us. It is needless to observe that a judgment of a Division Bench of this Court, wherein a question of law has been decided on the same set of facts, is binding on subsequent Bench, whereas, a party cannot be allowed to re-open or re-agitate the same legal controversy time and again in an attempt to have such settled legal issues, directly, or indirectly altered or changed by another Division Bench of this Court. Nonetheless, we could have decided the instant petition on the basis of the judgment referred to hereinabove, however, since in this matter the Board of Revenue, the lessor who granted lease to the respondent No. 8 has filed its comments, therefore, we would also like to examine the controversy with regard to entitlement of respondent No. Lto recover the conversion charges from respondent No.8 in respect of subject plot.
The Board of Revenue, Government of Sindh has categorically stated that they are the lessors of the subject plot bearing No. CL-7 Plot No. 9, Civil Lines Quarters No. 7, Karachi, which according to their record is residential-cum-commercial in view of the lease issued by Board of Revenue, Government of Sindh, in favor of respondent No.8 as the same is in the category of H-3/i. It has been further stated by the learned Counsel for Board of Revenue that the record available in the office of Land Utilization Department, Board of Revenue and also duly verified record available in the office of the Deputy Commissioner, Karachi (South)reflects that the said plot since inception is in the category of H-3/1. It is further submitted by the learned counsel that as per condition No. 21(1) of the statement of conditions notified on 7.4.1999 all the existing leases of the land for building purposes shall be renewed on the same terms and conditions under the category H-3/1 inline with other adjoining plots, hence there is no change in the terms and conditions of the lease. It is also an admitted position which has not been disputed by the learned counsel for respondent No. 1 that the lessor of the land in question is Board of Revenue and not respondent No.
1. Respondent No. 1,in its counter-affidavit, contended that the instant petition is liable to be dismissed; however they have claimed their entitlemeht to recover the charges in respect of the conversion of land use from residential to residential-cum-commercial. We are of the view that such contention raised on behalf of the respondent No. 1 is not correct and is based on misconception that there has been a conversion of land use, whereas, on the contrary in view of the documents, terms of lease and type of the category i.e. H-3/1 which related to residential cum- commercial category, the assertion of petitioner as well as of respondent No.1 in this regard is devoid of any merits and the same and is hereby repelled. Once it is admitted that the respondent No 1 is not the lessor of instant plot and there has been no conversion of land use in respect of subject plot, therefore, the question of receiving or charging any conversion fee by the. Respondent No 1 in the instant case does not arise, particularly when it has not so far been charged or demanded by respondent No.l.
13. We have been informed by the learned counsel for the respondent No.8 that the petitioner in this case has ventured into various litigation before this Court in respect of the plots in the adjoining locality of the subject plot as well as other plots, and one such case was filed by them in respect of Plot No. 18/1 Civil Lines Quarter No. 6, Karachi which has been discussed above in Standard Chartered (Supra). Previously the same petitioner had also filed C.P. No. D-2343 of 2007 [again Standard Chartered (Supra) in respect of Plot No. 18/2 Civil Lines Quarter No. 6, Karachi and had raised exactly the same legal issues in that petition as have been raised in the instant petition.
However, the said petition was withdrawn by the petitioner by filing an application under Order XXIII, Rule 1, C.P.C. By stating that the parties have settled the dispute through compromise and therefore permission was sought to withdraw the said petition. A Division Bench of this Court vide order dated 19-3-2009 had dismissed the same as withdrawn therefore, it transpires that the petitioner is time and again filing cases before this Court and agitating the same controversy in not less than 3 petitions, out of which one has been dismissed withdrawn and the other has been dismissed on merits. In view of this admitted position, which could not be controverted by the learned counsel for the petitioner, the contention of learned Counsel for respondent No.8 with regard to mala fide on the part of petitioner in filing instant petition on the same grounds carries weight. There is no cavil to the legal proposition that there can be no estoppel against law, however, a party by its conduct, certainly disentitles itself from agitating the same controversy again and again by filing frivolous proceedings before the Courts. We have noted with concern that the earlier petition filed by the petitioner on the similar grounds was not simply withdrawn, but it was stated in the application that the matter has been compromised between the parties, which, makes the case of the petitioner more daunting as it does not lie in the mouth of the petitioner to come once again before this Court and raise the same legal issues. Once the petitioner choses to enter into a compromise, then the petitioner loses all its rights, at least in respect of those issues which have already been raised and compromised. The petitioner who claims to own a property within the same vicinity, once chooses to compromise on the construction of a high-rise building either on an adjacent plot or on a plot within the same vicinity, then the petitioner is estopped by its own conduct and cannot be allowed to pick and choose in raising the same objections in respect of another respondent/builder. This conduct of the petitioner cannot be appreciated by this Court and is to be deprecated rather.
14. Learned counsel for the petitioner has also made a feeble attempt to contend that since two different benches of this Court have taken different views regarding the approval from the Environmental Protection Agency under section 12 of the 1997 Act, in the case of Nighat Jamal v.
Province of Sindh and others (2010 YLR 2624) and Shansul Arfin and others v. Karachi Building Control Authority and others (PLD 2007 Karachi 498) therefore the matter be referred for constitution of a larger Bench to thrash out the divergent views of the two learned Division Benches.
We have examined the said judgments and are not inclined to accept the contention of the learned counsel for the petitioner as according to our humble view the two Division Benches (Supra) have not given any divergent or contrary views on the same issue. In fact, this contention of the learned counsel for the petitioner has already been dealt with and declined by another Division Bench of this Court in its Judgment dated 24-10-2013 in the case of Salim Godil v. Province of Sindh in C. P. No. D-1272 of 2010. The Division Bench of this Court after having examined the cases of Nighat Jamal and Shamsul Arfin (supra) held as under:- "First of all, we would like to address the contention of Mr. Naim-ur-Rehman regardingeferring the matter to a larger Bench in view of alleged divisive opinions of two Benches in the case of Nighat Jamal (supra) and Shamsul Arfin (supra). In the case of Shamsul Arfin (supra) the moot question before the Court was; "As to whether KPT was to obtain approval of building plan from KBCA or that the KPT being itself an authority could approve plan by virtue of Schedule A-1 to Chapter 1 of the Karachi Building Town Regulations, 2002, therefore, it did not require such approval when the construction was on the land belonging to KPT. The Court while deciding such controversy on objection, that the construction of such multi-storeyed building would have an adverse environmental effect observed:-- "In our view the petitioner's argument that permission from Environmental Protection Agency is to be first sought has no force for the reason that firstly it is a case of construction of a residential building. Secondly, when the building plans are submitted to. KBCA, they are to be vetted by the Master Plan and Environmental Control Department also. This takes care of environmental effect of the building proposed to be constructed. Therefore, question of first seeking permission for a Residential building from Environmental Protection Agency does not arise."
' Whereas in the case of Nighat Jamal (supra) a Division Bench of this Court was of the view that "in all cases where any change in the land use is sought or in consequent to such change, construction or alternation/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.
' The distinguishing factor between the case of Shamsul Arfin (supra) and the case of Nighat Jamal (supra) appears to be that in the case of Shamsul Arfin there was no reclassification of residential area into commercial area, therefore, the implication of Environmental Law on reclassification or change of land use was not taken into consideration. Whereas, in the case of Nighat Jamal (supra) the residential land was reclassified as commercial by the City Council vide Resolution No. 659 allowing commercial construction on various roads abutting residential areas including Khayaban-e-Jami where the plot of petitioners is situated.
' It further appears that such controversy was also raised before another bench of this Court in the case of Clarissa James (supra) and the learned Bench, which was headed by the learned Judge who was the author of the judgment in the in the case of Shamsul Arfin (supra), came to the following conclusion:- "8. We are in respectful agreement with the above cited judgment of the Division Bench of this Court [Shamsul Arfin (supra)] and hold that under the facts and circumstances of this case, where on a residential plot of land a residential housing project, after having complied with all the codal formalities as required under the building laws, rules and regulations; is being constructed in the vicinity of several similar multistorey buildings, there would no requirement to seek permission or to obtain the approval/NOC from the nvironmental Protection Agency, particularly when Environmental Control Department of KBCA has already vetted the building plan which takes care of the environmental effect of the building. Moreover the petitioners have not been able to demonstrate any adverse environmental effect which would occur due to construction of the housing project on the subject land by the respondent No.1.
' As regards case of Nighat Jamal v. Provinces of Sindh and others 2010 YLR 2624 relied upon by the Counsel for the petitioner is concerned, we have observed that facts of the cited case are distinguishable from the facts of this case. In the cited case, the petitioner challenged the conversion of a residential plot into commercial and construction of multi-storey commercial- cum-residential building in a pure residential area. There were several other violations of the building laws which were alleged in the cited case whereas the commercialization in the pure residential area was also challenged. Re-classification of the land use was also objected by the petitioner of that case, and under such circumstances the Division Bench was pleased to observed that in case of reclassification of residential area into commercial area in such manner, there is every likelihood that the same may adversely effect the environment. In the instant case neither there is any reclassification nor there is any change in land use. Accordingly, we are of the view that the reliance placed by the counsel for the petitioner in the above cited Judgment is misplaced."
' In the circumstances, when the question regarding implication/ application of environmental law on reclassification was not considered in the case of Shamsul Arfin (supra) as author of the judgment in the case of Shamsul Arfin, himself while heading the Bench which decided the case of Clarissa James responded to the controversy which is now raised before us by holding that the issues in both the cases was altogether different. Interestingly, the judgment in the case of Clarissa James was handed down by the other members on the Bench i.e. One of us (Aqeel Ahmed Abbasi, J) and we in respectful agreement with the said judgment do not see any reason for referring the matter to the larger Bench.
15. Further, insofar as the objection regarding obtaining approval under section 12 of the 1997 Act is concerned, though the same has been decided by this Court in the case of Standard Chartered Bank (supra) in-extensio, however we would also like to benefit ourselves from the observations of this Court in the above referred case of Salim Godil (supra)on the same issue in which the learned Division Bench has held as under:- "Perusal of subsection-I of section 12 reveals that every proponent of a project before commencing construction or operation has to file an IEE with the concern Environmental Protection Agency and in case where the project is likely to cause an adverse environmental effect an EIA. However, the question arises to whether every kind of construction or project in the city can be termed as project as defined in section 2 (XXXV) and its builder as proponent requiring IEE and EIA before commencing construction or operation. The controversy gets an answer in negative if the provisions of subsection (1) of section 12 are read in conjunction with subsection 6 thereof, which clearly establishes that the condition of obtaining IEE and EIA in terms of subsection 1 of section 121 of the Act 1997 is not applicable to all kinds of projects but to such categories of projects and in such manner as may be prescribed under the Act. The Act itself does not detail the categories of the project for which a proponent has to file IEE or EIA in terms of subsection 1 of section 12 of the Act 1997. However, Clauses 3 & 4 of the Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000 (hereinafter referred to as Regulations 2000) framed in terms of section 33 of the Act, 1997 by the Federal Agency for carrying out the purpose of the Act, 1997 reflects that the Agency has categorized the projects in two schedules. The proponent of the project listed in Schedule-I has to file an IEE, whereas, for the project categorized in Schedule-II an EIA, therefore, it is not the every construction or project for which a builder or proponent of such construction or project has to file IEE or EIA but only the construction/project which have been listed in the Schedule-I or II of the Regulations 2000.
Even sub-regulation (1) of Regulation 5 specifically states that the proponent of a project not falling. In any category listed in Schedule I or II shall not be required to file an IEE or EIA. Though sub- regulation (2) of Regulation 5 empowers the Federal Agency to direct. The proponent of a project, whether such project is listed in Schedule I or II, or not, to file an IEE or EIA after recording its reasons for such direction. However, proviso to sub-regulation (2) to Regulation 5 places a clog on the exercise of such power by providing that Federal Agency shall not exercise such powers unless the Environmental Assessm ent Advisory Committee constituted under Regulation 23, has so recommended."
16. Similarly another Division Bench of this Court in its judgment dated 2-11-2011 passed in the case of Clarissa James and another v. S.I.S. Builders and ,Developers and others in C.P. No. D-2924 of 2011 also referred to in the case of Standard Chartered Bank (Supra) and Salim Godil (Supra), speaking through Mr. Aqeel Ahmed Abbasi J, (who is also a member of this Bench) has dealt with the same and identical objections with regard to section 12 of the 1997 Act and has repelled such contention raised on behalf of the petitioners after following the earlier judgment in the case of Shamsul Arfin (supra). The learned Division Bench has also distinguished the ratio of judgment in the case of Nighat Jamal (supra). The precise reason for such decision was that since in that case neither there was any reclassification, nor any change in land use, therefore, the case of Nighat Jamal (supra) was not applicable. Since, in the instant matter also, we have held that there is no reclassification nor change in the land use, hence, the ratio of the above judgment is also squarely applicable on the facts of the present petition.
17. Reliance placed by the learned counsel for respondent No.1 in the case of Abdul Wakeel v. EDO Revenue Karachi and others in C.P. No. D-216 of 2009 in this regard is misconceived as the facts of the instant petition are quite different and distinguishable from the facts of that petition inasmuch as in that case, admittedly, the lessor was KMC and the only issue raised on behalf of KMC was that they are entitled for receiving the conversion charges if a plot is allowed to be converted from the residential to commercial. On the contrary, in the instant case, the learned Counsel appearing on behalf of the respondent No. 1 (KMC) has admitted that they are not the lessors of the plot in question, whereas, there has been no change or conversion of land use as admitted by the lessor i.e. Board of Revenue in the instant case.
18. In view of the facts and circumstances of this case and the legal position as stated herein above, we do not find any substance in the instant petition, which is devoid of any merits; hence the same is hereby dismissed along with pending application(s) with no order as to cost.