' IRFAN SAADAT KHAN, J.---The instant petition has been filed with the following prayers:-- "(i) Declare that ad hoc commercialization cannot be carried out on residential roads and that change of status of a plot situated on residential road from residential to commercial is ultra vires the Change of Land Use and Master Planning Bye-Laws 2003, and direct the respondent No,2 to rescind all applications for commercialization that have been allowed in contravention thereof and restrain the respondent No,2 from entertaining any applications for commercialization that are not in accordance therewith.
(ii) Declare that an EIA and comprehensive survey, planning and justification for commercialization are prerequisite for a residential road to be designated as commercial.
(iii) Declare that the actions of the Respondent No,2 in permitting the change of land use of the Subject Plot vide the Impugned Memorandum is ultra vires and void.
(iv) Restrain the Respondents Nos. 1, 2 and 3 from taking any further steps towards commercialization of the Subject Plot on the basis of the Impugned Memorandum.
(v) Restrain the Respondent No,5 from entertaining any plan submitted for approval in respect of the Subject Plot on the basis of commercial use.
(vi) Restrain the Respondents Nos.7, 8 and 9 from issuing any electricity, gas, and sewage connections to any commercial building on the Subject Plot.
(vii) Restrain the Respondent No,10 from registering any conveyance or interest in respect of any building on the Subject Plot in favour of any person whatsoever.
(vii) Grant costs.
(viii) Grant such other relief as this Honourable Court deems just and proper in the circumstances."
2. Briefly stated, the facts of the case are that the petitioner claim that the respondent No,1 has wrongfully given to the respondent No,1 a NOC dated 05.01.2011, which is available at page No,33 of the instant petition, in respect of the property bearing No,161-A, Block 3, P.E.C.H.S., Karachi, which is a residential property for converting the same into a commercial property. It is the claim of the petitioner that since the road on which the said property is situated is a residential road hence the NOC given by the respondent No,2 to the respondent No,1 is illegal and the same may be cancelled by treating the said property as residential as in the vicinity of the subject property residential properties are located and if the property is allowed to be used as commercial property that would change the entire scenario of the road, which is meant for the residential purposes only, would then turn into a commercial road, hence, it is prayed in the instant petition that the said NOC not only may be rescinded but all the subsequent actions taken by the official respondents may also be declared ultra vires.
3. Mr. Yousuf Ali Sayed Advocate has appeared on behalf of the petitioners and submitted that a public notice was published on 05.11.2010 wherein it was mentioned that the respondent No,1 had applied for change of land use from residential to commercial and the objections from the public in this regard were invited. The petitioners thereafter lodged their complaint vide letters dated 15.11.2010, 17.11.2010 and 21.11.2010, as such, a meeting held on 21.12.2010 and then the Commercialization Committee forwarded a memorandum dated 23.12.2010 to the CDGK and thereafter vide Resolution No,18, dated 29.10.2010 the said permission for change of land was granted. Learned counsel submitted that the petitioners addressed a letter dated 08.01.2011 to EDO
(MPGO) that how the subject plot was commercialized in isolation by ignoring the Bye-Laws 2003 as, according to him, individual plots could not be commercialized. Thereafter a reply dated 13.01.2011 was given by the respondent No,2 but the said reply according to the learned counsel was evasive and without declaring the whole Sir Syed Road as commercial, the declaration of the plot under question as commercial is illegal as per Karachi Building and Town Planning Regulations, 2002 (KBTR, 2002). He submitted that the said NOC has been granted without considering the Environmental Impact Assessm ent (EIA) and other facts. Learned counsel further submitted that while granting the NOC no procedural mechanism as provided under Section 40 of the Sindh Local Government Ordinance, 2001, (SLGO, 2001) was also kept in view, hence discretion has arbitrarily been exercised by the respondents; therefore, this NOC is liable to be vacated. Learned counsel further submitted that the plots situated on the roads cannot at random be picked for commercialization as before commercialization there is a procedure given in the relevant law which in the instant case has been brushed aside and not followed. He submitted that this Court vide order dated 08.05.2014 required from the respondents to publish a notice in the prescribed form and thereafter obtain objections from the general public which though has been done but the same has not been done in accordance with law. Learned counsel further submitted that since the NOC has been issued in an arbitrary manner, the same may be cancelled. Learned counsel in support of his above contentions has placed reliance on the following decisions:--
1. Chairman, Regional Transport Authority, Rawalpindi V. Pakistan Mutual Insurance Company Limited, Rawalpindi (PLD 1991 SC 14)
2. Government of Pakistan and another v. Dada Amir Haider Khan (PLD 1987 SC 504)
3. Federation of Pakistan and others v. Ch. Muhammad Aslam and others (1986 SCMR 916)
4. Messrs Noorani Traders, Karachi through Managing Partner v. Pakistan Civil Aviation Authority through Airport Manager, Karachi (PLD 2002 Karachi 83)
5. Messrs Facto Belarus Tractors Limited Karachi and another v. Federation of Pakistan through Secretary, Ministry of Industries, Production and Special Initiatives Islamabad and others (PLD 2006 Karachi 479)
6. Owaisco v. Federation of Pakistan and others (PLD 1999 Karachi 472)
7. Ayesha Sabohi v. Inspector-General of Police, Punjab, Lahore and 3 others (2010 PLC (C.S.) 240)
8. Imran Hussain v. Water and Power Development Authority through Chairman WAPDA and 4 others (2011 PLC (C.S.) 116)
9. Nighat Jamal v. Province of Sindh and others (2010 YLR 2624)
10. Mrs. Farida and others v. New Allied Electronics Industries (Pvt.) Ltd. And others (2009 YLR 1896)
11. Zainab Garments (Pvt.) Ltd. Through Chief Executive and others v. Federation of Pakistan through Secretary Ministry of Housing and Works, Islamabad and another (PLD 2010 Karachi 374)
12. Irshad Ahmad Shaikh v. The State (2000 SCMR 814)
13. Ali Pakistan Newspapers Society and others v. Federation of Pakistan and others (PLD 2004 SC 600)
14. Brookes Pharmaceutical Laboratories (Pakistan) Ltd., Karachi through Authorized Director v.
Karachi Buildings Control Authority (KBCA) through Chief Controller and 5 others (2012 CLC 131)
15. Ardeshir Cowaske and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others (1999 SCMR 2883)
16. Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512)
17. Shehri C.B.E. v. Government of Pakistan and others (2007 CLD 783)
4. Mr. Mohamed Vawda Advocate has appeared on behalf of the respondent No,1 and has vehemently refuted the arguments of learned counsel for the petitioners and has submitted that the petitioners have approached this Court with unclean hands by challenging the commercialization of one plot only, whereas entire road has been declared as commercial, hence this petition has become infructuous and is liable to be dismissed. While elaborating his viewpoint, the learned counsel submitted that all the requirements of the law with regard to commercialization of plot have been fulfilled. He submitted that public notice was timely given and the petitioners participated in the meeting and have filed their objections which were considered and a final reply was also furnished to the petitioners which according to him, has not been denied by the learned counsel for the petitioners. He further submitted that all the possible problems which could arise in commercialization of the said road, which includes EIA, providing utility services and other aspects have duly been taken care of by the respondents hence, the assertion of the petitioners that these aspects have not been considered is not correct. He further submitted that if a road is declared as commercial all the plots on the said road automatically stands commercialized and there is no need of individual application or individual NOC. He further submitted that in petition bearing No,D-1210 of 2012 also, which was filed by the same petitioners, the commercialization of whole road since has been challenged hence this petition has become infructuous which may be dismissed. He further submitted that all the necessary documents with regard to publishing of newspapers and other documents have been annexed along with the statement filed by the respondents. He further submitted that not only once but twice the legal requirements have been fulfilled on the objections raised again and again by the petitioners. He submits that the Hon'ble Supreme Court of Pakistan in the case of Jawad Mir Muhammadi and others v. Haroon Mirza and others (PLD 2007 SC 472) has dismissed a petition when a matter was challenged by some persons in somewhat similar circumstances. He in the end submitted that this petition being bereft of any merit may be dismissed with heavy cost. In support of his contentions, the learned counsel has placed reliance on the following decisions:--
1. Zainab Garments (Pvt.) Ltd. Through Chief Executive and others v. Federation of Pakistan through Secretary Ministry of Housing and Works, Islamabad and another (PLD 2010 Karachi 374)
2. Messrs Al-Munaf Corporation through Partner v. Sindh Industrial Trading Estate Ltd. Through Secretary and 4 others (2009 CLC 950)
3. Capt. S.M. Aslam and others v. Karachi Building Control Authority through Chief Executive Nazim- e-Aala and others (2005 CLC 759)
4. Navaid Hussain and 5 others v. Jahangir Siddiqui through Attorney and 9 others (2007 CLC 1568)
5. Sheikh Naeem Ahmed and others v. Province of Sindh and others (2006 CLC 1231)
6. Sheri C.B.B. And others v. K.B.C.A. And others (2003 YLR 1086)
7. Mrs. Farida and other v. New Allied Electronics Industries (Pvt.) Ltd. And others (2009 YLR 1896)
8. Standard Chartered Bank Limited through Constituted Attorney v. Karachi Municipal Corporation through Administrator and 9 others (2015 YLR 1303)
5. Mr. Anwar Ali Shah Advocate has appeared for respondent No,5 and submitted that the owner of the plot in question applied for commercialization under the Bye-Laws 2003 which was processed and after fulfilling all the legal and codal formalities NOC was granted in favour of the respondent No,
1. He submitted that while adopting the process of commercialization public notice was given and objections from various quarters were called in which the petitioners participated and their objections were duly considered hence the present petition filed by the petitioners, according to the learned counsel, is not maintainable and is liable to be dismissed. He submits that similar view came up for hearing in a case reported as Abdul Razzak Adamjee and another v. Datari Construction Co. (Pvt.) Ltd. And another (2005 SCMR 142) wherein the Hon'ble Supreme Court of Pakistan has stated that the apprehension that the high rise buildings would result into host of problems amounting to public nuisance was found to be an abstract submission. He submitted that since city is rapidly growing the need of high rise buildings is imperative. He further submitted that since all the adjoining roads i.e, Khalid Bin Waleed Road and Tariq Road were commercialized thereafter the said road i.e, Sir Syed Road was also commercialized due to the need of the time. He further submits that this petition may, accordingly, be dismissed.
6. Syed Sultan Ahmed Advocate, representing the respondent No,2 and Mr. Asadullah Lashari, State Counsel, representing the respondents No,6, 10 & 11 have adopted the arguments of Mr. Mohamed Vawda and Mr. Anwar Ali Shah, Advocates.
7. Nobody has appeared for the respondents Nos.3, 4, 7, 8 and 9.
8. While rebutting the arguments, the learned counsel for the petitioned submitted that learned counsel for the respondent No,1 has raised an objection that the petitioners have raised their objection with regard to one plot only and have not agitated other plots, he submitted that since the objections were sought in respect of one plot only hence the petitioners have challenged the said NOC allotted to that plot. He further submitted that even otherwise since in the instant petition the petitioners have challenged the NOC of one plot, his arguments, in his view, would also be applicable to all the plots commercialized on the said road by the respondent No,2. The learned counsel finally prayed that the instant petition may be allowed.
9. We have heard all the learned counsel at considerable length and have also considered the written synopsis furnished and the case law relied upon by them.
10. From the pleadings of Mr. Yousaf Ali Sayeed, in our view, following points require deliberation:--
1. Whether the respondents were justified in converting the subject plot, which according to the learned counsel is a residential plot, into commercial?
2. Whether the NOC granted in this regard was in accordance with law?
3. Whether the powers vested in the official respondents were exercised in a proper manner and not arbitrarily?
4. Whether while granting NOC various factors e.g. EIA and other procedural requirements were not kept in view?
Section 40(a) of SLGO, 2001, states as under: "40. Functions of Zila Council in a City District.---In addition to the functions specified in section 39, the Zila Council in a City District shall perform the following functions, namely:--
(a) approve master plans, zoning, land use plans, including classification and reclassification of land, environment control, urban design, urban renewal and ecological balances:"
' It is clear from the above provision of the law that among the various functions it is also one of the function of the CDGK to approve master plans, zoning, land use plans, including "classification and reclassification". In the meeting held as per gazette No,DO/Press Part 11/09/0009, dated 19.12.2009 certain proposals were made before the committee to consider various issues and among others one of the issue was to give assent to initiate the task of change of land use in accordance with Bye-Laws w.e.f, 01.02.2004 in respect of certain roads. The road No,8 has been mentioned as follows:-- "Road 8... Sir Syed Ahmed Road. Tariq Road to Khalid Bin Waleed Road (Both sides)."
' In the "PREFACE" of the abovementioned gazette it has categorically been mentioned that:-- "In such circumstances it has become necessary for City District Government to formulate such a clear policy by which objectives regarding: conversion of land use could be implemented strictly so that gross development take momentum apart from fulfillment of the requirements of the metropolis."
' In the said gazette it has further been mentioned in point No,9.3 as under:--
9. COMMITTEE: 1, 1.........................................................
2.........................................................
' The Committee shall have power to make recommendations to the Council in respect of any area or the land along roads of Karachi for change of its use under rules and regulations. (Underline ours)
11. It is a settled proposition of law that once a road is declared as commercial, the status of individual plots on that road automatically changes and no approval is required in this regard.
However, it is seen that in the instant case firstly the plot under question was commercialized and thereafter the whole road was commercialized and both these matters are challenged in the instant petition and in the petition bearing No,D-1210 of 2012. Now the question which needs to be answered is whether an individual plot could be commercialized or not? The answer to this question, in our view, is given in the judgment in the case of Jawad Mir Muhammedi (supra) wherein it was held by the Hon'ble apex Court that conversion of a plot can be ordered by the authority only after issuance of public notice calling upon the residents of the locality to submit their objections to the said conversion and decide the same after providing opportunity of hearing, which is a mandatory requirement. Similar view was expressed in the case of Mrs. Farida and others v. New Allied Electronics Industries (Pvt.) Ltd. And others (supra) wherein it was observed that change of land use was a prerogative of the authority City District Government and such power could not be interfered with but only if all the laws, rules, bye-laws and regulations issued from time to time in that regard by the competent authority had been complied with and the only requirement as per the said judgment is issuance of public notice calling upon the objections from the public who could be effected from that action.
12. Now coming to the facts of this case, it is an admitted position that the respondent No,1 firstly applied for the issuance of NOC regarding change of land use on 07.09.2006 which was rejected by the CDGK vide letter dated 07.03.2007. Thereafter the respondent No,1 through letter dated 27.05.2008 asked CDGK to review its decision on the ground that since all the surrounding plots have been declared commercial hence the property owned by the respondent No,1 may also be declared as commercial. It was also mentioned in the said letter that the respondent No,1 is ready to pay the required charges for the said purpose. This matter was again considered and the legal formalities in this regard were fulfilled as public notice was given and objections of the public were obtained. It is also an admitted position that the petitioners participated in the meeting held on 21.12.2010 and filed their objections which were examined, however, the committee recommended that the plot in question may be considered for change of land use and the recommendations thereafter were sent to the Administrator for appropriate decision and the Administrator thereafter vide order dated 29.12.2010 granted the approval.
13. It is seen that the NOC was issued on 05.02.2011 but that NOC was subject to a number of conditions that if any misrepresentation is found at a later stage the approval will be withdrawn without any notice. It is also mentioned in the said NOC that all the legal formalities in this regard as per relevant rules and regulations contained in KBTR, 2002, have to be fulfilled. It is also mentioned in that said NOC that all the terms and conditions applicable on the conversion shall strictly be observed. It is also mentioned that all the parameters of "strategy for responsible conversion must be strictly adhered to by the owner". It is also mentioned that the said NOC was granted to encourage the sustained growth of the city. It is a settled proposition of law that commercialization of a plot by allowing change of land use is the prerogative of the CDGK and such power could not be interfered with until and unless it is proved that powers vested were exercised in an arbitrary manner.
14. Learned counsel for the petitioners has admitted that not once but twice publication was made in the newspapers and objections of the public were called. Firstly the publication was made in the newspaper dated 05.11.2010 and the petitioners participated in the said meeting and submitted their objections, which were considered, however, the matter was referred by the committee to the Administrator for decision who accorded the approval. Thereafter this Court vide order dated 08.05.2014, once again by consent, made an interim arrangement that the KMC shall publish a public notice in the prescribed form for change of land use in two vernacular newspapers for inviting objections from the general public, which also was done, publication was made in two newspapers dated 01.07.2014 and it is an admitted position that the petitioners thereafter filed their objections and also participated in the meeting. It is also noted that these objections were considered.
15. Hence, in our view, so far as this objection of the learned counsel is concerned that the basic formalities were not fulfilled is found to be contrary to the records. Therefore, the contention raised by the learned counsel that the powers so exercised by the official respondents vested in them were exercised arbitrarily does not carry weight since, in our view, the formalities as given in rules and regulations have duly been fulfilled. Thus, the various decisions relied upon by the learned counsel for the petitioners, with regard to arbitrary use of powers, are found to be distinguishable since in this case, in view of the facts recorded above, we have come to the conclusion that the powers exercised by the respondent in granting the NOC was in accordance with law to commercialize any plot by allowing change of land use and the legal requirement with regard to calling public through a notice to file their objections who could be effected has been fulfilled.
16. Now coming to the last segment of the arguments of the learned counsel for the petitioners that certain factors including EIA have, not been taken care of, in our view the answer to this objection is also given in the decision of Jawad Mir Muhammad (supra), wherein the Hon'ble Apex Court has stated as under:-- "25. As regards the deprivation of the rights to light, fresh air and clean environment, it is noted that infringement of such rights can be established only by producing satisfactory evidence and not merely on the statements in the pleadings of the affected party. There is no material on the record to prove the allegation of the appellants relating to deprivation or violation of the above easementary rights by construction of the alleged illegal floors. It is their unfounded apprehension based on subjective and abstract consideration. The hardships, inconvenience, or discomfort likely to result by the building in question must be more than "mere delicacy of fastidiousness and more than producing sensitive personal discomfort or annoyance. Such annoyance or discomfort or inconvenience must be such which the law considers as substantial or material". The appellants have failed to prove infringement of their rights of privacy, light, fresh air and pollution free environment as there is no material to substantiate their infringement."
17. The decisions relied upon by the learned counsel on this aspect also are found to be distinguishable in view of the explicit findings of the Hon'ble Supreme Court of Pakistan.
18. We, therefore, in view of the facts noted above, have come to the conclusion that this petition is not maintainable and dismiss the same and uphold the action of the official respondent in granting the NOC to the plot under question. Petition therefore stands dismissed along with the listed application.