1. ' SAJJAD ALI SHAH, J.--- The petitioners filed the instantpetition with the following prayer:--- ' A. DECLARE ((i) That the conversion of the subject property from residential to commercial is ultra vires and void.
(ii) That the Master Plan of the area known as Maulana Muhammad All Jauhar Co-operative Housing Society Limited can only be converted by the joint consent of the respondent No.1 and the respondent No.5.
(iii) That the Master Plan of the area known as Maulana Muhammad Ali Jauhar Co-operative Housing Society Limited cannot be converted by the respondent No.2.
(iv) That prior to conversion of the subject property from residential to commercial it is mandatory for the respondent No.1 and/or the respondent No.2 and/or the respondent No.5 and/or the respondent No.10 to obtain an Environmental Impact Assessment from the respondent No.6.
2. B. RESTRAIN
(i) The respondent No.4 from approving a plan for construction on the Subject Property other than a plan for a residential bungalow.
3. 'The respondent No.10 from constructing a commercial building on the subject property.
4. 'The No Objection Certificate issued by the respondent No.1 and the respondent No.2 for conversion of the Subject Property from residential to commercial.
5. ' Mr. Abdur Rahman, learned counsel appearing for the Petitioners, at the very outset has submitted that since Karachi Municipal Corporation (respondent No.2) vide its letter dated 20-2-2013 has withdrawn the NOC regarding change of land use/conversion granted in favour of respondent No.10, therefore, the purpose of filing this petition has been served and the petition along with application listed at Serial No.3 may be disposed of as not pressed.
6. ' On the other hand Mr. Mushtaq A. Memon, learned counsel appearing for respondent No.10 contends that since the respondent No.2 has withdrawn its NOC for conversion pending instant petition and during continuation of a status quo order passed by this Court on 15-1-2013 while directing notices on petitioners' application under Order XXXIX, Rules 1 and 2, C.P.C. (C.M.A. 531 of 2013) listed at Serial No.3 giving rise to filing of contempt application under Article 204 of the Constitution of Pakistan read with Order XXXIX, Rule 3(3) of C.P.C. Listed at Serial No.2, therefore, the respondent No.10 is entitled to a status quo ante by directing respondents Nos.2 to withdraw its letter dated 20-2-2013 by which it withdrew its permission for conversion and the officers responsible be punished for violating the status quo order. In support of his contention that the Court in the circumstances can direct status quo ante Mr. Mushtaq A. Memon has placed reliance on the case of Civil Aviation Authority v. Noor Muhammad (PLD 1988 Karachi 401). Per counsel, the respondent No.10 acquired subject property vide duly Registered Deed dated 22-3-2010 and applied for its transfer to Moulana Muhammad Ali Jauhar Memorial Co-Operative Housing Society Limited-respondent No.5, (hereinafter referred to as "the. Society") in his name and the Society vide its letter dated 19-7-2010 mutated the subject property in the name of respondent No.10. The respondent thereafter applied for conversion of the subject plot into commercial and after fulfilling all pre-requisite, the Society (respondent No.5) recommended the conversion by addressing letter dated 13-1-2011 to the Ministry of Works (respondent No.1) and EDO, Master Plan Group of Offices, CDGK, Karachi. However, the respondent No.1 thereafter advised the Society that the respondent No.10 may be asked to obtain NOC for conversion of residential plot into commercial from MAMCHS/KBCA/MPGO first and then to apply to the respondent No.1 as per procedure in vogue.
7. Thereafter, the respondent No.2/KMC Master Plan Department, KDA Wing vide its letter dated 27-1- 2012 directed the respondent No.10 to deposit the conversion fee and upon payment of all dues vide its letter dated 15-8-2012 granted NOC for conversion of the subject property and on the basis of such NOC Ministry of Housing and Works-respondent No.1 vide its letter dated 3-12-2012 accorded permission for commercialization of the subject property. Mr. Memon while placing reliance on an unreported order passed by a Division Bench of this Court in the case of SMCHS v.
8. CDGK (C.P. No.D-941 of 2004) contends that in such matters the Society has a limited role and in fact acts as a post-office, therefore, the reservations of the society regarding conversion of status of plot in question are of no effect. Per counsel, the subject property was commercialized after fulfilling all codal formalities and therefore, pending the instant petition withdrawal of NOC for commercialization by the respondent No.2/KMC during continuation of a status quo order is liable to be set aside and the officers responsible be punished in accordance with law.
9. ' On the other hand, Messrs Abdur Rahman and Syed Sultan Ahmed, learned counsel for the petitioners and respondent No.2 respectively, contend that the respondent No.10 by misrepresenting and distorting the facts had managed the conversion of the subject plot which was rightly and lawfully cancelled by the respondent No.2. It was further contended that the status quo order is to be construed in conjunction with the prayer made by the petitioners in their application listed at Serial No.3 in which the petitioners have sought a restrain order against respondent No.4 from approving a plan for construction on the subject property i.e. Plot No.31-B, Muhammad Ali Memorial Co-Operative Housing Society Limited, Karachi and therefore, such status quo order can by no stretch of imagination be construed to refrain the respondent No.2 from performing its lawful duties.
10. ' We have heard the learned counsel for the respective parties and with their able assistance have perused the record minutely as well as the case law cited at bar.
11. ' The record reflects that the policy of the respondent No.1 in terms of its letter dated 10-5-2003 addressed to all the Cooperative Housing Societies for converting the status of a plot from residential to commercial is after an NOC from KBCA from Town Planning point of view and in terms of the licence agreement between the Government of Pakistan and various cooperative housing societies upon the recommendation of the societies. The scrutiny of record reflects that the request of the respondent No.10 for conversion of the status of plot from residential to commercial was turned down by the Society-respondent No.5 on 25-11-2010 on the ground that the said plot was not situated on a declared commercial road with the intimation to the respondent No.10 that as and when Fatima Jinnah Road on which the subject plot is situated is commercialized the matter would be reconsidered. The respondent No.10 despite rejection of his first application moved another application on 26-11-2010 which was again turned down with the advice that if it is felt that the denial of request is not justified the respondent No.10 may seek remedy from the competent Court of Law. The respondent No.10 in response vide its letter dated 10-12-2010 requested the Society/respondent No.5 to forward his case to the concerned Ministry for examination as per law and the Society vide its letter dated 13-1-2011 forwarded the request by narrating all objections which per Society did not permit such commercialization. The respondent No.1 returned the request by demanding that the application should accompany NOC for conversion of residential plot into commercial from MAMCHS/KBCA/MPGO. The Society/respondent No.5 vide its letter dated 18-3-2011 by recording its all possible objection sent a copy of letter received from respondent No.1/Ministry to the Master Plan Group of Offices and the Commercialization Committee of respondent No.2 in its meeting held on 23-2-2012 allowed change of land use vide Item No.4, which reads as follows:--- ' ITEM NO.4. CHANGE OF LAND USE OF PLOT NO. 31-B MUHAMMALD ALI MEMORIAL CHS KARACHI 'This is a case of change of landuse of Plot No. 31-B Muhammad Ali Memorial CHSL Karachi admeasuring 600 Sq.Yds. Located on non-declared Fatima Jinnah Road. Subsequent to rejection of case regarding change of landuse of subject plot, the owner of said plot i.e. Mr. Muhammad Ishaq has made an application to Administrator KMC for change of landuse of plot in question from residential to Commercial. The worthy Administrator KMC has directed to put up through/with recommendations of Commercialization Committee.
12. 'The representative of Messrs Shehri CBE Mr. Raza Gardezi stated that the said plot is facing 80' feet wide road in the residential area, and as a result of Commercialization of said plot the 80' feet wide road will not cater the increase in traffic. Mr. Nadeem Ahmed Khan, Director, SBCA informed that the said road is not included in road widening scheme. The KW&SB representative stated that KW&SB charges should be cleared by the owner.
13. 'The representative of M/s. Shehri CBE, Dr. Raza Gardezi objected to this conversion from residential to commercial and said that they will approach court of law, if the change of landuse is allowed on plot No. 31-B, MAMCHS.
14. 'The case for change of landuse of plot No.31-B MAMCHS was discussed in Committee and it has been decided that the same case may be recommended for conversion as commercial subject to condition that 20 feet wide strip of land from the plot front shall be given by plot owner to increase the road width from 80 feet to 100 feet. The case shall be placed before City District Council for consideration with prior approval of Worthy Administrator, KMC.
15. ' The respondent No.2 thereafter vide its letter dated 15-8-2012 accorded NOC for conversion of the said land on the basis whereof the respondent No.1 vide its letter dated 13-1-2012 also accorded its NOC for such commercialization. It appears that after obtaining permission for conversion of the subject land from respondent No.2, the respondent No.10 filed before the Society/respondent No.5 building plan for construction of ground plus thirteenth floors on the subject plot and such request was duly advertised by the Society in daily "Jang" and "Dawn" both dated 9-11-2012 giving rise to filing of objections by the Residents of the Society. The Society thereafter vide its letter dated 17-12- 2012 informed the Ministry of Works as well as MPG() that it never recommended the case of the respondent No.10 for commercialization. On the contrary it had forwarded the case with various reservations which were never addressed by the Government of Pakistan or the Master Plan Group of Offices. The respondent No.2, therefore, realizing its mistake on 31-1-2013 issued show-cause notice to the respondent No.10 seeking explanation as to why the NOC for commercialization in respect of the subject property may not be withdrawn, as it has been obtained by misrepresentation and, therefore, is liable to be recalled in terms of Clause .(4) of the NOC dated 15-8-2012. The respondent No.10 through his counsel on 4-2-2013 submitted a detailed response.
16. The respondent No.2 thereafter vide its letter dated 20-2-2013 withdrew its NOC for change of land use/conversion.
17. ' In this backdrop, the residents of the Society after coming to know that the respondent No.10 is about to construct a residential-cumcommercial building consisting of Ground Plus Thirteenth Floors in their pure residential area beside filing objections also on 11-1-2013 filed the instant petition with the prayers, as reproduced above, challenging, the NOC granted by the respondent No.2 for such conversion. Along with main petition Miscellaneous Application No.531 of 2013 (listed at Serial No.3) under Order XXXIX, Rules 1 and 2, C.P.C. Containing following prayer was also moved:- "It is humbly submitted that for the reasons disclosed in the accompanying affidavit and in the interest of justice this honourable Court may be pleased to restrain the Respondent No.4 from approving a plan for constructions on the Subject Property Plot No. 31-B, Maulana Muhammad Ali Jauhar Cooperative Housing Society Limited, Karachi other than a plan for a residential bungalow."
18. ' The petition as well as the said application came up for hearing before this Court on 15-1-2013 and a Bench of this Court passed the following order:--- "Notice to the respondents as well as learned Advocate ;General Sindh and the learned D.A. -G. For 30-1-2013, to be issued instantly through all possible modes along with the relevant copies. Status quo shall be maintained till 30-1-2013."
19. ' It also appears to be an admitted position that after filing instant petition respondent No.2 on 31-1- 2013 issued a show-cause notice seeking explanation from the respondent No.10 as to why NOC for conversion granted to him should not be revoked. The respondent No.10 filed a detailed response through his counsel on 4-2-2013 whereafter the respondent No.2 vide its letter dated 20-2-2013 withdrew the NOC on the ground that it was obtained by misrepresenting the fact leading to filing of instant application.
20. ' Now the first question which requires consideration of this Court is, as to whether, in the circumstances, as detailed above, the respondent No.2 by recalling its NOC for conversion during pendency of this petition has violated status quo order dated 15-1-2013, reproduced above, and the dicta laid down by this Court in the case of Noor Muhammad (supra) could be made applicable by directing status quo ante and punishing the alleged contemnors. In the case of Noor Muhammad (supra) the dispute between parties precisely was that the agreement by which the plaintiff was holding a shop required determination as to whether the shop was held under a licence or lease.
21. The plaintiff filed a suit before the Court seeking determination of such question with the application to restrain the defendant/Civil Aviation Authority from dispossessing the plaintiff till such question is determined and the defendant after issuance of notices forcibly dispossessed the plaintiff. In these particular circumstances, the Court restored possession by observing that the Government Institutions/Public Functionaries are expected to assist the Court in the administration of justice and not to disturb factual position after receipt of notice from the Court with regard to the pending application for interim injunction. In appeal a Division Bench of this Court held as follows:-- - "In our view, the point for consideration in the present case is, as to whether simpliciter service of summons and notice upon a defendant in respect of filing of a suit for declaration and permanent injunction and an application for ad interim injunction by a plaintiff, is sufficient to place restraint upon the defendant against taking any adverse action against the plaintiff before the grant of an ad interim injunction by the Court. There cannot be any doubt that the Court can undo any act on the part of a defendant which he might have taken malafidely after the service of the notice of an injunction application, if the Court is satisfied that the dictates of justice so demand and, therefore, in a fit case the Court can pass an order of status quo ante i.e. Restoring the parties to the position which was obtaining at the time of the filing of the suit and the injunction application but, in our view, this does not necessarily mean that in every case where a defendant after service of notice of a stay application takes some adverse action/step against the plaintiff, the Court as a matter of course should order restoration of status quo ante without examining the merits of the case. However, it is desirable that a defendant should not take any action after the service of notice of a stay application with the intention to render the stay application infructuous, as it may create complications for him."
22. ' In the instant case, the respondent No.10 against whom respondent No.2 has taken corrective measures during pendency of this petition had never approached this Court against the proposed cancellation and no application seeking a restraint order against respondent No.2 was pending in the Court by which it could be assumed that the action of respondent No.2 was mala fide with the intention to defeat the process or steal a march over the proceedings of this Court. In fact in the instant case, an aggrieved person -had approached the Court for correction of the action of a public functionary and such public functionary upon realizing its mistake, and after giving a hearing to the person who would have a grievance against such corrective measure, rectified its mistake. In such circumstances, in our view no bar could be imposed on the public functionary on correcting its action during pendency of proceeding in which such action is impugned, as it would neither defeat the right of the person who has approached the Court nor would amount to pre- empting the pending proceedings, on the contrary such correction would be an assistance to the Court by saving its time of scrutinizing such action which could not be sustained.
23. ' Additionally, the term status quo means the state of events existing during the period immediately before the injunction application has been filed, and the grievance/cause of action in such cases is that which the application for status quo reveals. It is, therefore, imperative that status quo be read in conjunction with the application and be applied only to such matters which constitute the application. To hold otherwise would cause status quo orders to operate or be construed in a very wide and even unascertainable manner. If parties have approached the Courts with a grievance which is one of many that exists before them. The Court may only pass orders on such grievances that the complaining party has, by way of its application presented before it; If anything more than that is granted to such party, it would tantamount to granting him relief at an interim stage which might not have teen prayed for at the final stage. In the instant case the prayer in the injunction application was to restrain respondent No.4-SBCA from approving a plan for construction on the subject plot and not regarding conversion of its status.
24. ' On merits, the record reflects that the Society-respondent No.5 who in terms of the licence agreement and under the mandate of Government of Pakistan/respondent No.1 the ultimate owner, has been saddled with the responsibility to initiate the process of conversion has throughout denied and objected to the request of the respondent No.10. Seeking conversion. The record reflects that the first request of respondent No.10 seeking conversion was declined by the Society vide its letter dated 25-11-2010 by asserting that the subject plot is not situated on a declared commercial road, therefore, the request cannot be acceded. The second request was again declined by the Society vide its letter dated 9-2-2010 by advising the respondent No.10 that in case he feel aggrieved by such rejection he may seek remedy from the competent Court of Law.
25. However, at the insistence of the respondent No.10, the Society on 13-1-2011 forwarded the request of conversion to the respondent No. 1/Ministry of Housing and Works and MPGO with its objection as to the conversion by specifically stating that the plot is situated in a purely residential area and does not fall on a declared commercial road as the planning of the area is residential. The Ministry of Housing and Works/respondent No.1 returned the original request with the remarks to advice the respondent No.10 to obtain NOC for conversion from the Society as well as MPG() in the first instance whereafter the Ministry would consider the request for conversion. It appears that the Society forwarded the said letter and request of conversion with its reservation as stated above to MPGO/respondent No.2, who placed such request before the Commercialization Committee which through above reproduced .Resolution allowed the conversion. Perusal of Resolution reflects that it appears to worse case of colourable exercise of powers, as the Commercialization Committee without any declared policy commercialized a plot in a pure residential area in gross violation of Item No.5(1) of Bye-Laws 2003 prohibiting conversion of land use on roads having less than 100' feet width. The purpose of prohibiting commercialization on road having less than 100' feet of width appears to be that such roads would not be able to take load/influx of the traffic, which would flow upon such commercialization and such intent of course could not be defeated by asking the builders to raise construction leaving 20' feet space for the simple reason that such area of 20' feet would still remain the property of the builders and could be used. For his own purposes and would not become a part of thoroughfare. The approach of Commercialization Committee of course was totally unprofessional and could not sustain legal scrutiny and, therefore, in our IC opinion such permission was rightly withdrawn.
26. ' So far as the contention of Mr. Mushtaq Memon that the Society in cases of conversion/change of land use acts like a post-office and has no say whatsoever, as it is the sole prerogative of an ultimate owner i.e. Ministry of Works to either permit or refuse conversion appears to be totally misplaced. In Constitutional Petition No.D-941 of 2004 relied upon by Mr. Memon, the dispute was in respect of construction and not conversion and, therefore, the Court has observed that the Society "has a limited role to play in so far as the construction activity is concerned on the plot in question" and rightly so as all permissions in respect of raising construction and all questions/disputes pertaining to construction activity by mandate of law are to be regulated by Building Control Authority. However, in the cases of conversion/change of land use the ultimate owner i.e. Ministry of Works has entrusted upon the Society and the City District Government Karachi (now Karachi Municipal Corporation) the function of considering the cases of conversion for the reason that the land of ultimate owner is managed by the Societies, therefore, it is the Society who has to forward the request of conversion to the Town Planner with its recommendation either Way and since such recommendations are based on the factual position and explain as to whether the conversion in the circumstances would be in consonance with the Town Planning or not, therefore, such recommendations cannot be simply brushed aside. Though strictly speaking such recommendations cannot be said to have binding effect on the Town Planner or the ultimate owner but in case of disagreement proper reasoning must be recorded.
27. ' Since we are convinced that the action of the respondent No.2 of withdrawing its No Objection for conversion of land use was neither mala fide nor to defeat the process of this Court, and further that the ambit of status quo order in context of the prayer made in the application on which it was directed did not forbid or restrict the respondent No.2 from withdrawing NOC for conversion and even otherwise the respondent No.10 has no case on merits, therefore, the question of restoring status quo ante does not arise. The application fixed at serial No.2 consequently is dismissed. The petition also stands dismissed along with listed application at serial No.3 as not pressed.