' SYED HASAN AZHAR RIZVI, J.---This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan has been filed by the petitioners with the following prayers:-
(1) Declare that the Tajveez No,2 item No,4 of the City District council Resolution No,383 dated 01.01.2004 cannot be applied retrospectively and is not applicable to past and closed transactions as to the commercialization of plot.
(2) Declare that the demand of difference of commercialization fee from the petitioners vide letter dated 02.11.2011 in terms of Tajveez No,2 item No,4 of the City District Council Resolution No,383 dated 01.01.2004 is arbitrary, illegal, unlawful and without jurisdiction and set aside the same.
(3) Declare that the respondent No,3 has no right and authority to demand difference of commercializatee fee in terms of Tajveez No,2. Item No,4 of the City District Council Resolution No,383 dated 01.01.2004 in respect of the subject property which was already converted into commercial by the respondent No,1 vide letter dated 16.11.1987 and against which the commercialization fee has already been paid by the owners at that time.
(4) Declare that the demand of the Respondent No,3 of payment of difference of commercialization fee on the already converted commercial plot is in violation of Articles 2A, 4, 8, 24 and 25 of the Constitution of Pakistan, 1973.
(5) Declare that there is, even otherwise, no need to obtain NOC from the respondent No,3 in respect of properties located on the road already declared commercial as is the case of the petitioner.
(6) Declare that the respondent No,1 has all authority in law to process and approve the plan for construction of 4th and 5th floor on the subject commercial property without demanding NOC from the respondent No,3.
(7) Direct the respondent No,1 to process and approve the building plan for the construction of 4th and 5th floor on the subject property without demanding the NOC from the respondent No,3.
(8) Declare the order passed by the learned Governor vide dated 24.03.2012 is in violation of provisions of Section 24A of the General Clauses Act and is therefore, illegal, unlawful and void ab- initio.
(9) Grant any other relief, which is deemed appropriate in these circumstances of the case.
(10) Grant cost of the petition."
2. Brief facts of the case are that petitioners are owners of Plot No,171-A, Block-3, Sir Syed Ahmed Khan Road, PECHS, Karachi having purchased the same from Messrs Sanaullah Corporation after payment of valuable consideration, and mutation has taken place on 16.07.1995 in favour of the petitioners. Initially the status of the property in question was residential, however, the predecessor-in-interest i,e, Messrs Sanaullah Corporation (Pvt.) Ltd. Applied for conversion of the subject plot from residential to commercial through lessor i,e, PECHS and Ministry of Housing and Works Islamabad, which was commercialized on 16.11.1987 after observing all codal formalities by the competent authority and the owner has paid the commercialization fee to the respondents Nos,4 and 5. Thereafter, the petitioners got approved and raised a commercial project of Ground plus 3 floors on the subject property as per approved building plan. On 23.11.2010 the petitioners approached the respondent No,1 for getting approval of fourth and fifth floor on the subject property and paid the requisite fee for the approval of plan. The respondent No,1 directed the petitioners to approach the respondent No,3 to obtain NOC for construction of 4th and 5th floors.
The petitioners wrote letter to the respondent No,3 for the grant of NOC and after considerable time the respondent No,3 vide letter dated 02.11.2011 instead of issuing NOC demanded the difference of commercialization fee as per Tajveez No:2 item No,4 vide change of land use and master planning byelaws 2003 City District Council Resolution No,383 dated 01.01.2004. The petitioners being aggrieved from the demand of the respondent No,3 lodged a complaint with the respondent No,6, who vide order dated 03.1.2012 directed the respondents Nos,2 and 3 to finalize the case of the petitioners without recovery of differential amount and issue NOC. The respondent No,3 impugned the said order in appeal before the respondent No,7 on the ground that the order of the respondent No,6 will result in heavy loss of revenue. The respondent No,7 by order dated 24.3.2012 allowed the appeal of the respondent No,3, hence this petition.
3. Counter-affidavits/comments have been filed by respondents Nos,1, 2, 3 and 7 in support of their case rebutting the averments made in the petition.
4. We have heard Mr. Mohammad Naman Jamali, learned counsel for the petitioners, Syed Sultan Ahmed, learned counsel for respondent/KMC, Mr. Anwer Ali Shah, learned counsel for the respondent/SBCA and Mr. Miran Mohammad Shah learned AAG Sindh and perused the material available on record.
5. Mr. Mohammad Naman Jamali, learned counsel for the petitioners, at the outset has argued that the demand raised by the respondent No,3 vide letter dated 02.11.2011 is illegal, unlawful and without jurisdiction as Tajveez No,2 Item No,4 of the City District Council Resolution No,383 dated 01.01.2004 cannot be applied retrospectively on the property(s)/land which were already converted into commercial and against which commercialization fee was also paid. He has also argued that once the subject property converted into commercial after fulfilling all codal formalities and payment of commercialization fee then the respondent/KMC has no authority to demand differential amount in terms of Tajveez No,2 Item No,4. He has further argued that the order of the learned respondent No,7 was also illegal and void as the same was passed without assigning any reason and justification, so also in violation of the provisions of section 24-A of the General Clauses Act. He has urged that the even the road on which the subject property is located has already been declared commercial as such there is no legal requirement of even obtaining NOC from MPGO, hence the act of respondent No,1 referring the petitioners to obtain NOC from respondent No,3 is illegal and without any justification for the reason that the subject property has already been converted into commercial way back in 1987 and there is no restriction in law for raising 4th and 5th floors on the subject property except approval of building plan. In support of his submissions, learned counsel has placed on record photocopy of certified copy of order dated 28.6.2004 passed by Hon'ble Supreme Court of Pakistan in Civil Petition No,429-K of 2004 wherein it was observed that "it is settled principle of law that rights of the parties shall be governed/decided as per the law prevailing at the time when cause of action has accrued, particularly in the matters pertaining to fiscal disputes". He also placed reliance on the cases of Federation of Pakistan v. Muhammad Tariq Pirzada and 2 others (1999 SCMR 2744), Federation of Pakistan v. Muhammad Tariq Pirzada and others (1999 SCMR 2189) and Zainab Garments (Pvt.) Ltd. And others v. Federation of Pakistan and another (PLD 2010 Karachi 374).
6. Mr. Anwer Ali Shah, learned counsel for the respondent/SBCA has contended that the Master Plan and Environmental Control Department vide its letter dated 16.11.1987 has accorded a no objection certificate regarding commercialization of subject plot and the concerned competent authority has already declared the said road as a commercial. He further stated that the respondent No,1 have no objection if the competent Court of law pass any order in the said matter and after the decision the authority shall decide the said pending application dated 27.7.2011 strictly in accordance with law and KB&TP Regulations, 2002, as amended upto date.
7. Syed Sultan Ahmed, learned counsel for the respondent/KMC has argued that on 06.10.1987 KBCA issued NOC for commercialization of subject plot with the condition that Ground and Two Upper Floors shall be allowed and the construction on the plot in question has already been raised upto Ground + 03 Upper Floors. As such the petitioners have already availed the facility of construction of one additional floor and this fact has been concealed by the petitioners that they have already availed the facility of one additional floor as per the then Rules of 1987. He has further contended that according to change of Land use and Master planning Bye-laws 2003 vide Tajveez No,2 Item No,4 MPDKMC is empowered to charge differential amount on such cases wherein SBCA had completed its proceedings. He has also contended that the petitioners have submitted building plans/approval of construction of 4th and 5th Floors in SBCA on 23.11.2010 on the subject plot whereas the change of Land Use and Master Planning Byelaws 2003 was notified as per Resolution No,383 dated 06.01.2004. He submitted that the owner had paid commercialization fee @ Rs,300/- per Sq. Yards in the year 1987, which has been enhanced as per change of Land use and Master Planning Byelaws-2003 @ Rs,8,000/- per sq. Yard and as such the owner is liable to pay differential amount of Rs,77,00,000/-. Learned counsel for the respondent/KMC supported the order of learned respondent No,7 and submitted that the learned respondent No,7 has rightly allowed the appeal by holding that the amount is to be incurred on the work being carried out by KMC in respect of development of infrastructure such as water, sewerage etc. He, therefore, prayed for dismissal of instant petition with cost. In support of his submissions, he has placed reliance on the cases of Zahid Saeed and 4 others v. City District Government, Karachi and 3 others (PLD 2010 Karachi 218), Mst. Ummatullah v. Province of Sindh and 6 others (PLD 2010 Karachi 236), Capt. S. M. Aslam and others v. Karachi Building Control Authority and others (2005 CLC 759), Jawad Mir Muhammadi and others v. 1-11.Roon Mirza and others (PLD 2007 SC 472).
8. We have heard the arguments, perused the material available on record and thoroughly examined the case laws cited at bar.
9. It is an admitted fact that in the city of Karachi there is congestion on account of over- population and in such situation there is no other way out except construction of high-rise buildings. Such high-rise buildings are already in existence in the close vicinity of the building in dispute. It is imperative upon the Court while exercising jurisdiction in a Constitution Petition to see that discretion is to be exercised in such a way that mischief and chaos is prevented particularly when construction of high-rise building is in public interest and the construction of building in dispute is not the first building in the area in the neighbourhood of which there are no high-rise building already constructed.
10. The controversy agitated through the instant petition is in respect of payment of change of land use. The petitioners in these proceedings has impugned the order of learned respondent No,7 in which it has been stated that the policy for change of land use and master planning 2003 was approved by the Resolution 383 on 06.1.2004 and under that policy petitioners were required to make payment of differential amount which is to be incurred on the work being carried out by KMC in respect of development of infrastructure such as water, sewerage etc.#TE##
11. The principle laid down in S. M. Aslam v. KBCA (2005 CLC 759) case is that since the area has been notified as commercial, per Notification dated 28th July, 1998 there would be no question of payment of commercialization fee and the Court directed the KBCA to examine the concept plan for raising commercial construction and no further NOC for commercialization of plot in dispute is required from CDGK. As regards the issue of applicability of the policy for change of land use and master planning 2003, the Hon'ble Supreme Court of Pakistan in Civil Petition No,429-K of 2004 has observed that "it is settled principle of law that rights of the parties shall be governed/ decided as per the law prevailing at the time when cause of action has accrued, particularly in the matters pertaining to fiscal disputes."
12. Admittedly, the subject plot was commercialized as far back as in 1987 and there arises no occasion for the petitioners to seek change of land use as the status of subject plot already stood changed from residential to commercial and respondent/KMC cannot demand difference of commercial fee at the new rates once the petitioners have paid the commercialization and town planning charges at the then prevailing rate to the respondent, as such, the policy for change of land use and master planning 2003 would certainly be not applicable to the petitioners' plot.
Moreover, the plot in dispute is located on the road already declared as commercial, therefore, no permission of the respondent was required and the petitioner is free to construct fourth and fifth floor on the plot in dispute after obtaining approved building plan. Consequently, the demand raised by the respondent/KMC through the letter dated 02.11.2011 is without lawful authority.
13. In view of above position, we allow the petition and set aside the order of the learned respondent No,7 dated 24.3.2012.