1. SHAUKAT ALI MEMON, J.---In this petition the petitioner had made a grievance about irresponsive attitude of the respondent No.1 by not processing/approving the lay out plan submitted by the petitioner on or about 22nd April, 2008.
2. 2.On 29.01.2014 Additional Director, Town Planning, M.D.A. had effected his appearance before this Court and stated that in case compliance of the requirements enumerated in their letter dated 16.01.2014 are made, the approval will be accorded without any delay.
3. 3.By order dated 07.03.2014 we have disposed of certain objections of the M.D.A. raised in its letter dated 28.02.2014 relating to verification of ownership; maintenance of proposed 100 feet wide road; non-signing of the lay out plan by the owner; distribution of amenities; absence of internal dimension of each block and non-mentioning of the scale in the submitted lay out plan. Only one objection was left over regarding demand of the outer development charges by M.D.A. to which M.D.A. itself abided and undertook to be demanded as per further order/determination, if any by this Court. Aforesaid order dated 07.03.2014 virtually disposed of the petition and all objections and the except issue of outer development charges. For the purpose of more clarification, the contents of order dated 07.03.2014 are reproduced as under:-- "Officers from Malir Development Authority (MDA) have placed letter dated 28.02.2014 and admitted that the layout plan has been submitted but the scrutiny reflects the following objections:- As per order of the Honorable High Court of Sindh dated 18-02-2014 as well as MDA's letters dated 01-10-2013 05-11-2013 and 06-02-2014, the Deputy Commissioner, Malir has to forward the Ownership Title of the land in question, which has not been forwarded to this Authority up till now however, the Additional Deputy Commissioner-H, Malir, Karachi vide his letter dated 18-02-2014 has forwarded the detailed report of Mukhtiarkar addressed to the Deputy Commissioner, Malir which was required to be forwarded by the Deputy Commissioner, Malir instead of Additional Deputy Commissioner-II, Malir, as ordered by the Honorable High Court of Sindh dated 18-02-2014, as well as MDA Rules/Regulations. ii.Proposed 100' wide road as per notification/road plan of Shah Latif Town should be maintained. iii.Utara/Revenue Sketch is required. iv.The submitted layout plan should be signed by the owner/ sponsor as well as Licensed Town Planner. v.Amenities distribution are not shown as per KBTPR-2002 (amended up to date) i.e. Parks and Play Ground 4+4=8%, public uses = 4% and Education uses = 3%. vi.Internal dimension of each block are not shown, which should be shown on the proposed layout plan. vii.Scale is not mentioned in the submitted layout plan therefore, layout plan should be submitted in proper planning scale. viii.The Outer Development Charges will be demanded as per order/ decision of the Honorable High Court of Sindh.
4. Heard the learned counsel for the respective parties at length.
5. As to objection No. (i), it appears that earlier the Petitioner along with the documents placed before the Respondents have annexed letter from the Deputy Commissioner Malir, verifying their title in respect of subject land but the Respondent objected that this letter is addressed to the Petitioner, therefore, is not acceptable. They demanded that said letter be addressed to them.
6. Consequently, necessary directions were imparted vide Order dated 29.01.2014, directing MDA to itself verify the title of the Petitioner from the Deputy Commissioner, Malir. It appears that Additional Deputy Commissioner has verified the title of the Petitioner in respect of subject land and has addressed verification letter to the Respondent but the Respondent for ulterior reasons still have raised objection that the Deputy Commissioner itself has not verified the title. The objection being frivolous is overruled.
7. As to Objection No. (ii), regarding providing of space for 100' wide road, we have asked the counsel for the Respondents as well as the Officers to show us how such road can be taken out from a private land without acquiring such land and the only response they could give was that as per notification/road plan of Shah Lauf Town 100' road appears which is important for the town planning purposes but they admitted that they want to take out road from the land of the Petitioner without acquiring it, which of course cannot be allowed. Petitioner says that parallel to his land, land of Sindhi Jamat Cooperative Housing Society is situated and they have left a space of 20 feets and to cut short the dispute they would leave a space of 50 feets. This takes care of second objection.
8. As to Objection No. (iii), since title of the land has been verified, therefore, this objection has become redundant.
9. As to the Objection No. (iv), the owner of the project Mr. Asif Naqvi today has signed one copy of the lay out plan, therefore, the objection is taken care of.
10. As to Objection No. (v), space for amenities in terms of KBTPR-2002, the Respondent admit that the construction area shown by the Petitioner in their lay out plan is less than 55% for residential and 5% for commercial which is entitlement of the Petitioner. The remaining of course is for amenities and can be vouched by the Respondent if they apprehend its conversion at any subsequent stage. The objection stands decided.
11. As to Objections No. (vi), Petitioner says that he is ready to mention the scale on which the layout plan has been prepared as well as the internal dimensions. Let the layout plan mentioning the scale for 10.050 acres be submitted. It is contended that upon submission of layout plan actual measurement was carried out and excess land was found in possession of the Petitioner. The background as stated by Mr. Agha Faisal is that initially a plot of 30 acres was allotted by the Government of Sindh which subsequently was bifurcated into three and more than 11 acres has come in the share of the Petitioner. As it was a private bifurcation, both the owners of privately bifurcated land having their factories on two sides of the Petitioner's land have never objected and since the excess land in possession of the Petitioner is not a government land, therefore, the objection by the Respondent does not appears to be valid as the Petitioner is seeking layout plan in respect of 10.050 acres. The position on factual aspect is not denied by the Respondents. In view of the fact that layout plan is not only for 10.050 acres, therefore, the objection is overruled.
12. As to Objection No (vii) same would be taken up on the next date of hearing.
13. To come up on 26.03.2014"
14. 4.We have heard the learned counsel and perused the record.
15. 5.It is argued by the learned counsel for the petitioner that respondents are not entitled to claim any outer development charges as Shah Latif Town itself is a developed area. In support, attention is invited to Notifications dated 26.12.2013 and dated 24.05.1980 of Sindh Government Gazette.
16. Learned counsel referred to the statement dated nil filed in compliance of this court's order dated 29.01.2014 wherein in reply to condition No. IV it is admitted by the M.D.A. that M.D.A. had developed infrastructure on the said scheme in respect of major roads, water supply, sewerage system and storm water drainage system etc. and in future further work will also be carried out and for this purpose the sponsor as per law/rules/regulations has to pay outer development charges approved by the authority @ Rs.220 per square yards in the year 2006. In order to show that the area is already developed learned counsel referred to some photographs of aerial view annexure 'C' (page 45).
17. 6.Conversely, the learned counsel for respondent No.1 submitted that by virtue of Clause 24 Chapter III of the M.D.A. Act 1993, the authority/respondent No.1 is empowered to raise funds with prior consent of the Government for meeting the costs and execution of the schemes and could further collect the same with such procedure as prescribed and spend in such schemes with the approval of the Government. The learned counsel further added that pursuant to Clause 3-3.5 of KBTR-2-2 the outer development charges for the scheme have been approved by the authority at the rate of Rs.220/- per square yard.
18. 7.In order to appreciate the submissions of both sides, the examination of documents and Gazette Notification referred to above is necessary.
19. 8Learned counsel for the petitioner has referred the Board of Revenue, Government of Sindh's notification dated 26.12.2013 regarding permission to M.D.A. to get physical survey and preparation of road network/land use plan of notified Dehs under its jurisdiction but we find that Deh Khanto where land of the petitioner is situated is not included therein. However the Sindh Gazette Notification dated 24.05.1980 annexure D/1 filed alongwith statement of MDA, submitted on 08.09.2014 reveals that K.D.A. scheme No.25-A (known as Khanto Town) with revised boundaries was declared to be called as Shah Latif Town. We further referred to annexure D of the above statement which is master plan of Shah Latif Town KDA Scheme No.25-A wherein Deh Khanto is shown forming part of Shah Latif Town.
20. 9.By referring the above documents we are left with no doubt that the land of the petitioner is situated in Shah Latif Town in particular when there is no denial from the side of the respondent No.1 that it is not a developed area.
21. 10.Now reverting to the arguments of the respondent No.1 that MDA Act 1993 Section 24 empowers the Authority to impose and collect charges, taxes, fees, for raising funds, there could be no second opinion about it. The question is whether development charges demanded by respondent No.1 for approval of lay out plan are with justification, when the area is already developed.
22. 11.The Authority in its meeting dated 30.06.2006 has decided Rs.220/- per square yard to be the outer development charges. We are of the opinion that the petitioner has to pay the outer development charges at the rate of Rs.220/- per square yard, particularly in view of the fact that in para 16 of the petition, the petitioner has itself admitted that it remains ready and willing to pay any lawful dues and/or comply with any lawful directions for approval of layout plan. Further, the petitioner in the petition has nowhere stated that it is not liable to pay development charges or has paid any development charges. Thus, the arguments of the counsel for petitioner that the respondents are not entitled to claim development charges has no force. The petitioner is liable to pay the outer development charges in view of the above finding and the respondent shall approve the layout plan by charging at the rate of Rs.220/- per square yard decided in the meeting referred to above. On receipt of outer development charges, the M.D.A. is directed to approve the layout plan within a period of 15 days. Order accordingly.