1. Sana Akram Minhas, J: The Petitioners have filed the present Petition to challenge the action of the Respondent No.2 ("SBCA") of sealing a dental clinic known as "Alvi Dental Hospital" ("Clinic"), which is located on Plot No.23-B, Block B, Sindhi Muslim Cooperative Housing Society, Karachi, measuring 1395 square yards ("Subject Property"). The leased plot is owned by the Petitioner No.1, in whose name it has been officially transferred/mutated.
Respective Submissions
2. Learned Counsel for the Petitioners began by candidly pointing out that the Subject Property, as per its lease, is designated as a residential plot where the Clinic is operating since 1992. However, he has asserted that: i) The SBCA's sudden action of sealing the Clinic operating in the Subject Property on 3.10.2024 - by pasting a sealing order of the same date ("Impugned Sealing Order") at the entrance around 9:15 pm under the cover of night and without prior notice - came after nearly 32 years of uninterrupted, lawful operation in violation of rules of natural justice. ii) The use of the residential plot as a clinic is permissible under Regulation No.19-2.2.2 of the Karachi Building & Town Planning Regulations, 2002 ("KBTPR"). Without prejudice to this argument, the absence of prior notice deprived the Petitioners of the opportunity to apply to the SBCA for conversion and/or regularization of the Subject Property. iii) The alleged action violates Section 7-A read with Section 6(1) of the Sindh Building Control Ordinance, 1979 ("SBCO 1979") which, inter alia, expressly mandate that a building can be sealed in cases where it has been constructed without an approved plan - a situation that does not apply in this case. iv) In addition, the SBCA's act is not only discriminatory, given that countless other residential plots in the vicinity are being used for non-residential purposes, but is also malicious and politically driven. The Clinic and the Subject Property belong to the former President of Pakistan Dr. Arif Alvi, who is affiliated with the political party "Pakistan Tehreek-e-Insaf" (PTI), which is a strong opposition and criticism of the current coalition Government. The SBCA's action was a retaliatory measure in direct response to the former President's recent visit and press conference in Lahore, where he condemned the Government's repressive policies.
3. In response, learned Counsel for the SBCA has contended that: i) The present Petition is not maintainable for two primary reasons: first, the Petitioners failed to file an appeal against the Impugned Sealing Order as provided under Section 16 of SBCO 1979; and second, Section 18-A(3) vests exclusive jurisdiction on the Special Courts to adjudicate all matters involving violations of the provisions of the SBCO 1979. In support of his submission, he referenced the judgment of a Division Bench of this Court dated 30.9.2024 (passed in CP No.D-3465/2022 - Tahir Hussain v. Director General, SBCA). ii) The SBCA's action of sealing the Subject Property was with prior notice and not politically motivated. iii) The decision to seal the Subject Property was prompted by a formal complaint dated 13.9.2024 made by a citizen and was based on observed violations of the SBCO 1979 by the field staff.
Impugned Sealing Order
4. The contents of Impugned Sealing Order dated 3.10.2024, photograph of which is annexed with the main Petition, are: Dated: 03/10/2024 SEALING ORDER Subject: SEALING OF PREMISE AT PLOT NO.23-B, BLOCK-B, SMCHS, DISTRICT EAST, KARACHI The premises of subject plot is hereby sealed on account of unauthorised construction at subject plot, as per orders of the Competent Authority (Director, District East, SBCA) under Section 7-A of SBCO 1979 (amended to date).
If this seal is found tempered / broken by any person or persons, he / she / they shall be punished under Section 19 of SBCO 1979 (amended up to date) or any other penal action permissible under the law.
Sd/- Deputy Director For, Defunct Jamshed Town-II District East SBCA Opinion Of The Court
5. We have considered the arguments of Counsel and examined the record.
Maintainability of Petition
6. Appeal under Section 16 against Impugned Sealing Order: Section 16 of SBCO 1979 provides the framework for filing appeals against orders issued under the SBCO 1979. It stipulates that:
16. Appeal. An appeal from an order under this Ordinance may, in the prescribed manner, be preferred within thirty days of such order to:
(a) Government in the case of the order made by the Authority; and
(b) The Authority, in other case.
7. Keeping in mind the key components of this section, it becomes clear that: i) To begin with, Section 16 of SBCO 1979 requires the filing of an appeal "from an order", which necessarily implies that an actual order must exist. In the present case, the so-called Impugned Sealing Order, though labelled as an "order," is, in reality, an enforcement action or a consequential action rather than a formal directive. It claims to have been issued "as per the orders of the Competent Authority," yet it lacks any accompanying documentation or specific reference to a dated, authoritative directive, nor has it been provided at any point thereafter. Consequently, no appeal can be filed against what merely constitutes a sealing action. ii) Secondly, the phrase "in the prescribed manner" indicates that the appeal should be filed according to specific procedures or formats set out in the SBCO 1979 or related regulations (viz. KBTPR) or rules. However, it is important to note that neither the SBCO nor KBTPR nor the rules provide any standardized form for such appeals. iii) Thirdly, Section 16 sets up a hierarchical appeal structure based on the issuing authority: a) According to Section 16(a), if an order is issued by the "Authority", the appeal must be filed with the Government of Sindh (as defined in Section 3(i)). b) Under Section 16(b), if the order is issued by any entity other than the "Authority" i.e. non- Authority (named this way solely for clarity and ease of understanding), the appeal is to be directed to the Authority itself. c) Section 3(b) defines the term "Authority" to mean the "Authority" appointed under Section 4, whereas the latter section allows the Government to appoint by notification, any designated entity (from amongst corporate body, council, or government department or functionary or any organization) to function as the Authority for a particular area. If such an entity is appointed, its Chief Executive or in-charge will serve as the Chief Executive of the Authority for that area. iv) Whereas an order for sealing issued under Section 7A of SBCO 1979 must be issued by the "Authority" or an authorized officer of the Authority, the Impugned Sealing Order is ambiguous, as it fails to clearly specify who issued it. It does not indicate whether it was made by the "Authority" (as established under Section 4 of SBCO 1979) or by a non-Authority (i.e. another entity). Instead, it adds to the uncertainty by claiming to have been issued on the orders of the "Competent Authority (Director, District East, SBCA)". Notably, the term "Competent Authority" is neither defined nor recognized under the SBCO 1979, nor does the latter provide any legal basis for such a designation. v) Furthermore, as stated above, no copy of this alleged order of the so called "Competent Authority" has been attached nor is the date of its issuance mentioned in the Impugned Sealing Order. vi) Moreover, even the Impugned Sealing Order fails to adequately guide or inform the recipient (i.e. Petitioners) on where to file an appeal. vii) Thus, this lack of clarity heightens uncertainty and confusion, as a party cannot be left to guess which forum is the correct venue for their appeal, especially given that a thirty (30) day period is provided for filing the appeal. Compliance with procedural requirements may be crucial since missing the deadline or failing to follow the specified procedure could give the SBCA an excuse to dismiss the appeal. However, for clarity, we would like to specify that for now, we refrain from determining whether strict adherence to the "prescribed form" is mandatory or whether substantial compliance might suffice, even if it does not strictly conform to a specific format (which as noted above is not available). We leave this issue for consideration in future cases, should it arise.
8. Given the circumstances, the Petitioners' failure to file an appeal under Section 16 of SBCO 1979 cannot be deemed fatal to their Petition.
9. Exclusive Jurisdiction of Special Courts: Turning now to the maintainability of this Petition on the second count, the provisions concerning the establishment and jurisdiction of the Special Courts (specifically Sections 18-A to 18-E of SBCO 1979) must be considered comprehensively and holistically, rather than in isolation or by focusing on individual sections alone. Consider the following: i) While Section 18-A of the SBCO 1979 (titled "Establishment of Special Court") no doubt establishes the Special Courts, and Section 18-A(3) grants them exclusive jurisdiction to try all cases related to violations of the SBCO 1979, this jurisdiction is not without limits. It is restricted by Section 18-D[1], which outlines the "Procedure of Special Court" and states that a Special Court can only take cognizance of an offence under SBCO 1979 upon receiving a complaint and a written report from a police officer regarding a violation of the SBCO 1979. ii) Further clarification of this requirement is found in Section 18-C (titled "Notification of Police Stations"), which mandates that the government shall notify the necessary police stations within a district or taluka to take cognizance of offences under the SBCO 1979, thereby confirming that the Special Court's cognizance is contingent upon the receipt of a complaint and a police report.
10. Jurisdiction, thus, cannot be assumed or transferred simply by the nomenclature or upon establishment of a special court; it must be clearly defined and supported by the specific legal framework governing the matter at hand. It is, therefore, patent from the above that mere mention of the term "Special Courts" or the phrase "establishment of Special Court" in Section 18-A of SBCO 1979 or the repetitive use of the words "Special Court" in Section 18-B or 18-D or 18-E or 18-F does not automatically confer jurisdiction upon these courts, nor does it diminish the jurisdiction of this Court which has been invoked under Article 199 of the Constitution of Pakistan, 1973 ("Constitution"). The jurisdiction of the courts is a matter of significant legal principle, and not merely a procedural technicality, and courts are extremely protective of safeguarding it - indeed, they jealously guard it - and do not surrender it lightly. They do so only after a rigorous review of the relevant legal provisions and confirmation that all criteria laid therein have been met.
11. No party, including the SBCA, has argued before us that the necessary procedural step of preparing a complaint and a report, as mandated under Section 18-D of the SBCO 1979, was carried out by the police in relation to the Subject Property. Section 18-D expressly requires that such a report be prepared and subsequently submitted with the complaint to the Special Court, and this procedural requirement serves as a crucial trigger for invoking the jurisdiction of the Special Court. In the absence of this foundational step, the Special Court's jurisdiction cannot be lawfully activated. Significantly, in the present case, there has not even been any assertion let alone any documentary evidence that this complaint and a report was ever prepared or submitted. As a result, the conditions necessary for the Special Court to lawfully exercise its authority are clearly not met and do not arise in the present circumstances.
12. We may add that significantly and surprisingly, the SBCO 1979 provides no mechanism to cater for situations where the SBCA remains inactive (whether by design or otherwise) or where the police deliberately fail to file a complaint or report before the Special Court. This effectively places the aggrieved person entirely at the mercy of the SBCA or the police. However, in such circumstances, it would be incorrect to assume or conclude that the aggrieved party is entirely without recourse. In such cases, they retain the option to compel performance through the constitutional remedy provided under Article 199 of the Constitution.
13. In light of the above, the judgment dated 30.9.2024 (passed in CP No. D 3465/2022 - Tahir Hussain v. Director General, SBCA) cited by SBCA's Counsel does not serve as a relevant precedent in this case. It is readily distinguishable because the key issues highlighted in the present matter have not been raised and, therefore, naturally not examined in that prior decision.
14. Accordingly, we overrule this objection as well and hold this Petition to be maintainable.
Permissibility Of Using A Residential Plot As A Dental Clinic Under KBTPR
15. The Counsel for Petitioners laid much emphasis on the fact that KBTPR defines the following terms separately: "Clinical Buildings" (Regulation 2-32), "Commercial Building" (Regulation 2-33), "Commercial Use" (Regulation 2- 34) and "Residential Building" (Regulation 2-107). He asserted that although the term "residential use" is not explicitly defined in the KBTPR, Regulation 19-2.1 provides clarification by explaining what falls under this category. The Regulation 19-2, which is pertinent, is reproduced below: 19-2. Urban Uses - Residentiary 19-2.1. Residential uses: includes all land used for dwelling facilities, but does not include land used for lodging facilities operated on a commercial basis.
19-2.2. Other residentiary uses: 19-2.2.1. Government Uses: ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ....
19-2.2.2. Health and Welfare Uses: includes land used for health and social welfare services such as health centre, medical & dental clinics, hospitals, maternity homes, medical research institutions, nurseries, mother and child care centres, homes or other institutions for physically disabled persons, mental institutions, homes for the elderly, and veterinary clinics / hospitals including green areas and open spaces essential for the proper functioning of such institutions; 19-2.2.3. Educational Uses: ... ... ... ... ... ... ... ... ....
16. Based on the above, the Petitioners' Counsel argued that both "Residential Uses" and "Health and Welfare Uses", which encompass medical and dental clinics as well as hospitals, fall under the common, broader category or broader umbrella of "Urban Uses - Residentiary", and consequently the Petitioners' Dental Clinic does not constitute a non-residential use nor does it amount to a misuse of residential plot.
17. We find this line of reasoning unpersuasive. Regulation No.19-2.2.6 explicitly includes "Commercial (trade) uses" under the same broad category of "Urban Uses - Residentiary."
Similarly, Regulation No. 2-7 defines an "Amenity Plot" as a plot exclusively allocated for amenity uses, as outlined in Chapter 19 of the KBTPR, including "Health and Welfare Uses" under Regulation 19-2.2.2. Accepting the Petitioners' argument would imply that commercial activities on residential plots would also be permissible (or that residential plots can be used for amenity purposes), effectively equating residential and commercial uses within this broad category (or treating residential and amenity uses as equivalent or interchangeable). Such an interpretation would be illogical, contrary to regulatory intent, and would lead to chaos in town planning and zoning regulations, ultimately defeating the purpose of plot reservation i.e. designating plots for specific use.
SBCA's Two Alleged Prior Notices
18. While the Petitioners have specifically stated in their Petition that no notice or show cause had been issued to them prior to the Impugned Sealing Order, the Counsel for the SBCA on 21.10.2024 presented in Court a mere Statement (unsworn and not given under oath) bearing the same date.
This Statement encloses a copy of the SBCA's Comments to the main Petition along with several annex. Among these annexed documents are two notices, purportedly issued by the SBCA to the Petitioners - the first, a "Show Cause Notice" allegedly dated 18.9.2024 (which alleges the misuse of the Subject Property by converting it from residential to a commercial clinic), and the second, allegedly dated 27.9.2024, (reiterating the same allegation of misuse).
19. Without prejudice to the above, it is important to note that the Impugned Sealing Order makes no reference to the issuance of the alleged Show Cause Notice dated 18.9.2024 or the notice dated 27.9.2024 prior to the sealing. This omission is odd, as these notices would logically have been mentioned if they had indeed been issued before the Impugned Sealing Order.
20. Furthermore, both alleged notices bear handwritten endorsements showing receipt by one Khurshid Khan, a person whom, according to the Petitioners' Counsel, is neither employed by them nor works at the Subject Property. The notices fail to provide any CNIC information for this individual, nor is there independent or reliable proof of delivery, such as through postal mail or courier. The Counsel for SBCA failed to provide an adequate response to this. Given these circumstances, the argument of Petitioners' Counsel that rules of natural justice were violated as no notice was issued to the Petitioners prior to the SBCA's sealing of the Subject Property and that the two notices in question (produced in Court for the first time on 21.10.2024) have been fabricated and backdated hold considerable merit and weight (the impact and consequence of which are discussed in paragraphs 31 to 36 below).
21. While holding so, we remain mindful of the well-established principle that a constitutional petition is not the appropriate forum for resolving complex or disputed questions of fact. Although no petition is entirely devoid of factual elements, it is equally important to recognize that not every factual dispute raised in a petition precludes this Court from exercising its constitutional jurisdiction. There are instances where facts are deliberately contested or exaggerated to create the appearance of a factual controversy, merely to evade this Court's judicial scrutiny. In such cases, where a detailed factual inquiry is unnecessary, and the matter (such as the issuance and receipt of notice in the present Petition) can be resolved through a straightforward examination of documentary evidence already on record, this Court is fully empowered to decide the issue without delving into a deeper factual appraisal. To do otherwise would undermine the purpose of constitutional oversight and permit procedural tactics to defeat the ends of justice.
22. Besides, in light of the serious allegations made by the Petitioners, the unsworn nature of the SBCA's Statement severely undermines its position, as it lacks the legal authority and credibility that a sworn statement would provide.
Fluctuating Allegations Of SBCA & Second Sealing Order Dated 16.10.2024
23. Even assuming, for the sake of argument, that the two notices dated 18.9.2024 and 27.9.2024 were indeed issued by the SBCA to the Petitioners prior to the Impugned Sealing Order, as alleged by SBCA in its Statement of 21.10.2024 (which, as demonstrated in paragraphs 18 to 20 above was not the case), and that these notices cited misuse of the Subject Property, the SBCA itself appears to have abandoned that ground. This is evident from the fact that the actual Impugned Sealing Order dated 3.10.2024 fails to mention misuse and instead introduces an entirely new basis for sealing viz. "unauthorized construction at the subject plot".
24. Moreover, the situation is exacerbated by the SBCA's failure to identify or specify the alleged unauthorized construction in the Impugned Sealing Order, rendering this allegation vague and entirely unsubstantiated.
25. Worsening matters further, the Petitioners' Counsel has drawn attention to the issuance of yet another "Sealing Order" dated 16.10.2024 (attached with the Petitioners' Statement dated 21.10.2024), which claims that the Subject Property was sealed due to alleged "misuse the residential premises into commercial activity also violation of Lease Condition". Since the SBCA's Statement dated 21.10.2024, makes no mention of this newly issued Sealing Order, and the SBCA's Counsel did not address it during his submissions, we find no reason to determine the legality of its contents, and our focus remains confined to the original Impugned Sealing Order of 3.10.2024.
26. Thus, the question of whether the use of the Subject Property for purposes other than those specified in the lease terms authorises the SBCA to seal the premises under Section 7-A of SBCO 1979 does not require a determination in this case. This is because the allegation of misuse of the Subject Property is absent from the initial Impugned Sealing Order dated 3.10.2024, which has been issued on an entirely different ground (viz. unauthorized construction), and serves as the sole basis for sealing the Subject Property.
27. However, we are compelled to observe that it remains unclear how two separate sealing orders (first dated 3.10.2024 and second dated 16.10.2024) could be issued for the same Subject Property, raising serious questions regarding procedural consistency and the validity of these actions.
Significantly, this latest "Sealing Order" of 16.10.2024 once again fails to reference any prior notice issued to the Petitioners before the sealing action was taken. This omission further underscores and substantiates the Petitioners' objections concerning the lack of due process, transparency, and the legitimacy of the enforcement actions.
Locus Standi Of Alleged Complainant
28. Upon being questioned, the Counsel for SBCA during the course of his submissions stated that the violations were discovered following a private complaint dated 13.9.2024 received from a resident Fayyaz Ali - a copy of which is attached with SBCA's Statement of 21.10.2024. Notably, the complaint lists the Complainant's incomplete address (viz. "Resident of Flat No.601, Khalid Bin Walled, PECHS"), as it fails to specify name of building or any plot number of the alleged Complainant's building. Moreover, the Complainant claims to reside in PECHS Society, while the property in question is located in an entirely different area, viz. the Sindhi Muslim Cooperative Housing Society. This discrepancy casts serious doubts on the Complainant's locus standi, his bonafides and strongly suggests the complaint (if at all received by SBCA) to be tainted with malafide intentions. It further indicates that the entire exercise of sealing the Subject Property by the SBCA to be an improper exercise of statutory power or colourable exercise of its statutory duty.
Petitioners' Claim of Unequal & Prejudicial Treatment
29. The Petitioners assert that a significant number of residential plots adjacent to their Subject Property are being utilized for non-residential or commercial purposes. Yet, they contend that they are the only ones being unfairly singled out, as their premises have been sealed. To substantiate their claim, the Petitioners have submitted coloured maps (filed with their Statement dated 21.10.2024) identifying the neighbouring properties currently being used for non-residential or commercial activities. Notably, this allegation of misuse or deviation in the use of adjacent properties has not been refuted by Counsel for SBCA. Although the Counsel verbally claimed that actions have also been taken against neighbouring plot owners, however, no documentary evidence was presented to support this assertion of similar enforcement actions taken against the latter.
30. This, therefore, lends credibility to the Petitioners' claims of victimization, as the SBCA's inconsistency not only raises questions about the fairness of its actions but also suggests a possible bias specifically directed against the Petitioners. The apparent pattern of selective enforcement further strengthens their allegations of inequitable treatment and selective bias.
Rules of Natural Justice & Due Process
31. The rules of natural justice are foundational principles of law designed to uphold fairness, impartiality, and transparency in decision-making, particularly within administrative, quasi-judicial, and judicial contexts. These principles serve as vital safeguards against arbitrary or biased actions by authorities, ensuring that individuals are treated justly. The two core rules of natural justice are: i) The rule against bias (nemo judex in causa sua), which rule mandates that decision-makers must be impartial and free from bias or conflict of interest. ii) The right to a fair hearing (audi alteram partem), which rule ensures that individuals have a fair opportunity to present their case before any decision is made. It includes notice of hearing (informing individuals of the charges or issues against them in advance), opportunity to respond (so that individuals have a chance to present evidence, arguments, or witnesses) and access to evidence (so that individuals are allowed to review and challenge evidence against them).
32. By adhering to these principles, decision-makers uphold public confidence in the fairness of the system and minimize the risk of arbitrary, unfair, or biased actions. When decisions are made transparently and reasons are clearly provided, individuals affected by those decisions understand the basis for the outcome. Transparency also facilitates accountability, as decisions can be scrutinized.
33. In Federal Government Employees Housing Authority v. Ednan Syed (a recently issued but as- yet unreported decision dated 21.5.2024 passed in Civil Petition No. 767/2022), the Supreme Court has affirmed that Article 10A[2] of the Constitution guarantees the right to a fair trial and due process, which includes the essential right to be heard, rooted in the principle of audi alteram partem. The Court emphasized that this principle requires that all relevant parties be given prior notice and a fair opportunity to present their case. The failure to provide such an opportunity constitutes a violation of the affected individuals' basic rights and indicates a lack of due process.
34. Reference may also be made to the decisions in Inspector General of Police v. Fida Muhammad (2022 SCMR 1583); Sohail Ahmad v. Government of Pakistan (2022 SCMR 1387); Warid Telecom v. Pakistan Telecommunication Authority (2015 SCMR 338) and Abdul Majeed Zafar v. Governor of The Punjab (2007 SCMR 330), where the Supreme Court has consistently upheld the principle that no decision impacting an individual's rights should be made without first providing them a fair opportunity to be heard.
35. Applying these principles in the context of the present case, the failure to provide prior notice to the Petitioners constitutes a clear breach of natural justice, particularly the right to a fair hearing.
Central to these principles is the obligation to ensure that any party potentially affected by an adverse action (in this case the Petitioners), is given proper, adequate notice, as well as a meaningful opportunity to respond and present their case before enforcement measures are undertaken. By bypassing this essential procedural safeguard, the SBCA deprived the Petitioners of their right to be heard. This procedural lapse not only violates the principles of legality and fairness, but also undermines the integrity of the regulatory actions in question.
Conclusion
36. For the reasons set forth above, the failure to provide the Petitioners with prior notice and a meaningful opportunity to be heard constitutes a clear violation of their fundamental rights under the principles of natural justice. This procedural lapse undermines both the legality and fairness of the actions taken by the SBCA. Consequently, the Impugned Sealing Order dated 3.10.2024 is set aside, and this Petition is allowed with no order as to costs. The Subject Property shall be de-sealed immediately by SBCA.
37. The Petitioners shall submit an application for the use and/or conversion and/or regularization of the Subject Property to the SBCA for consideration within ten (10) days from today. The SBCA shall decide the application in accordance with the law within forty-five (45) days of its receipt, through a reasoned, speaking order.
[1]Section 18-D of SBCO 1979: Procedure of Special Court - (1) A Special Court shall take cognizance of an offence falling under this Ordinance, on receiving the complaint and a report in writing by any police officer for violating the provisions of the Ordinance which constitute an offence under the Ordinance.
(2) A Special Court shall, in all matters with respect to which no procedure has been prescribed under the Ordinance, follow the procedure as laid down in the Code of Criminal Procedure, 1898
2. Article 10A of Constitution: Right to fair trial. For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process