MUSHIR ALAM, J.---This Civil Petition for Leave to Appeal arises out of judgment dated 12.11.2013, passed by a learned Division Bench of High Court of Sindh at Karachi, whereby Constitution Petition (C.P. No, D-3033 of 2011), filed by the petitioner was dismissed.
2. In brief, the case of the petitioner appears to be that the petitioner Mst. Saeeda Bano Siddiqui was granted 30 years residential lease in respect of Plot No,C-18, Bazar Area, Malir Cantonment Board, which lease expired on 07.06.2000. From the record, it appears that the petitioner was trying to avail commercialization of her property along with other owners of residential properties in the same lane. Earlier commercialization conceded on 18.05.1997 was cancelled. Again commercialization was offered by Malir Cantonment Board through its resolution dated 29.06.2005 and the petitioner was offered through letter dated 08.09.2006 to avail commercialization within a period of six months on payment of the premium. The petitioner could not avail such concession and applied for extension to pay the amount within a period of one year which period was extended from 08.03.2007 to 07.03.2008. In the meantime, revised policy of conversion of properties held on Old Grant/Cantt. Code Leases into Regular Leases under C.L.A. Rules, 1937 and conversion/change of purpose of regular leases into fresh leases was issued on 31.12.2007, as amended on 21.03.2008. Terms of para 2 of the said Policy inter alia provided for change of purpose from residential to commercial sites, subject .to obtaining of certain NOCs in respect of the properties situated outside the Bazar Area and for properties situated inside the Bazar Area, and premium of 50% of the revenue rate. Said para 2 of the Policy reads as follows:- "2. Change of Purpose From Residential to Commercial. Sites held for residential purpose may be leased out for commercial purpose subject to the following conditions. a. Obtaining of NOC. The following NOCs will be required: -
(1) Sites outside Bazar Areas
(a) NOC from GHQ in consultation with Service Headquarters concerned from military/security point of view.
(b) NOC of the respective Cantt. Board from municipal point of view.
(2) Site's Inside Bazar Area. NOC of the local Cantt. Board from municipal poini of view. b.Premium. 50% of the Revenue Rate (Commercial) will be charged for conversion from residential to commercial lease in Schedule IX-C. c. Ground Rent. The ground rent shall be charged at the rate of Rs,4/- per sq. yd. per annum."
3. Mr. Nisar A. Mujahid, learned ASC for the petitioner contends that period for payment of premium in the above terms was in the field when the extension of one year was granted from 8th March, 2007 to 7th March, 2008, the revised policy was in force on 31.12.2007. He has drawn our attention to clause `le of General Condition No,3 which deals with various natures of the cases including the cases in clause 'k' in respect of already issued NOC and it was inter alia provided therein that NOC once issued shall not be withdrawn. According to the learned counsel, petitioner's case was squarely covered under clause `le referred to above. It is stated that under the revised policy, the commercialization is to be effected under Condition No,8 which reads as follows: "B. Zoning. a. Existing Cantonments. The respective Cantt. Board shall carryout zoning as per byelaws/local conditions and development strategy. b. New Cantonments. Zoning shall be ensured at the planning stage."
It is urged that the zoning as contemplated under Condition No,8 was not in force when sanction for commercialization was granted to the petitioner and such zoning condition cannot be enforced. To a specific query of the Court, it was candidly conceded that the premium as per revised policy was not paid within one year extension granted to the petitioner from 8th March, 2007 to 7th March, 2008. It was pointed out that the petitioner approached the Cantonment Board on 19.05.2010 to seek commercialization in terms of the revised policy which was declined.
4. From the record, it appears that the petitioner on 28.04.2010 again approached the respondents for conversion of her residential lease into commercial which was also declined through letter dated 05.05.2010, which reads as under:- "Subject:- COMMERCIALIZATION OF RESIDENTIAL PROPERTY IN CANTT. BAZAR, MALIR CANTT.
Reference your application No, PF/7560/18-C/Com/1/2010 dated 28.04.2010.
2. The sanction was issued in the year 2006 which was not availed of by you within the stipulated period hence, lapsed. It is therefore advised that you may submit your willingness to Cantt. Board Malir to take commercial lease as per revised policy 2007."
Sd/- (Abdul Hayee Qamer)
Deputy Director General (Lands)"
The petitioner consequently, approached respondent No,1 seeking commercialization of her property as per revised policy in 2007. The request of the petitioner was promptly declined on 12.05.2010 holding that "But the property of applicant does not fall under the commercial zone approved by the Board in terms of para 8 abovesaid land policy." Legal notice was served on the respondents on 29.09.2010. In December 2010, the petitioner filed the petition (C.P. No, D-3044 of 2010). Comments were filed refuting the claim of the petitioner. The petition was, however, withdrawn on 24.03.2011 with permission to file fresh petition. Accordingly, Constitution Petition (C.P.
No, D-3033 of 2011) was filed. Comments exchanged. For the facts noted hereinabove, the learned Division Bench of the High Court dismissed the petition, vide impugned judgment dated 12.11.2013.
Operative part of the judgment is as follows:- "From the facts and record examined by us, it is evident that commercial zone starts from across the road from the petitioner's plot, whereas petitioner's plot is located in residential area as per the layout plan shown to us by Mr. Jamaluddin Ansari. No doubt that in the commercial zone various residential plots are also located but such plots have either been commercialized in terms of Declaration of the Revised Policy or could be commercialized. As commercialization is an administrative decision merely because petitioner's plot is next to commercial area which is just across the road would not entitle the petitioner to seek commercialization of her plot as a matter of right. Judgment relied upon by petitioner's counsel are of no avail as the plot of the petitioner does not fall within the commercial zone. Therefore relief sought by the petitioner cannot be granted. For the foregoing reason we dismiss this petition."
5. Learned counsel for the petitioner contends that NOC in commercialization approved on 29.06.2006 was protected and saved under clause 'k' of para 3 of the revised policy as noted in the narrative above. According to the learned counsel, once commercialization was approved, it could not have been revoked. In support of his contention, he has placed reliance on "Zainab Garments (Pvt.) Ltd. v. Federation of Pakistan (PLD 2010 Karachi 374) and Tariq Aziz-ud-Din: in re (2010 SCMR 1301) to urge that once an area is declared commercial, all residents are entitled to avail such commercialization without any formal application. It was next urged that 12 plots across the road in the same vicinity were commercialized, whereas the petitioner was declined and as such she has been discriminated against.
6. We have considered the submissions made. It may be noted that on a number of times, the petitioner was extended concession to avail commercialization which was not availed and last such concession was extended on 29.06.2006 and the period of payment of premium extended at the request of the petitioner upto 7th March, 2008 was also not availed of by her and almost two years after the expiry of last mentioned period, the petitioner again approached for commercialization which was declined as the property per the revised policy fell outside the commercial zone and the petitioner was accordingly informed. The plots in Category 'D' were commercialized from 30.09.2006 to 24.05.2007, whereas the petitioner did not avail such concession when offered during the validity period and even otherwise record shows that these plots are situated within the commercial zone. The petitioner cannot claim parity with the plot holders of Category `D'. We do not find any ground strong enough to take an exception to the conclusion drawn by the learned Division Bench of the High Court.
7. Consequently, the listed petition is dismissed and leave refused.