' This judgment will dispose of two writ petitions bearing numbers W.P. 4881-92 and W.P. 5193-92 as the controversy subject-matter of these petitions as well as the question of law involved are one and the same. The factual background of the controversy raised may first be narrated.
' W.P. 4881-92 ' Ahmed Javed Shah petitioner is one of the co-owners of residential property bearing No,76-E-1, Main Boulevard, Gulberg, Lahore, and on the adjacent property bearing No,74-75/E-1, Gulberg, a multi-storeyed commercial building under the name of Hafeez Centre has been built after demolishing a residential bungalow. Both these properties are situate in the area which is part of the scheme developed and executed by the erstwhile Lahore Improvement Trust, the predecessor- in-interest of the Lahore Development Authority. The building so built is a four-storeyed building with basement and height of the building is 58 feet. The assertion of the petitioner is that the Gulberg Scheme with its main Boulevard was and continues to be a residential area and no part of any property situated in the said Boulevard can be converted to any other use as conversion of use of a property is not only prohibited but is also a criminal offence under section 38 of the Lahore Development Authority Act, 1975. However, in terms of sub-Regulation (4) of Regulation 96 of the L.D.A.
Building Regulations, 1984, the properties abutting on the Main Boulevard in Gulberg may be subjected to change of use from 'residential' to ' special commercial' but subject to the prior approval by the Director-General of the L.D.A. Which can be granted by him only on production of a no-objection certificate from the owners of the adjoining properties. It was asserted that the petitioner who is owner of an adjoining property did not give his consent or no objection for the conversion of the use of the property and that in any case the conversion is permissible only to the extent and subject to the pre-conditions mentioned in the abovesaid regulation regarding number of storeys, to the maximum height of 38 feet, adequate protection to the privacy of the adjoining properties, maximum coverage, adequate parking space and situation of the building lines. It was added that sub-Regulation (5) of Regulation 96 defines 'special commercial' as including only offices, restaurants, motels and showrooms, and, therefore, the plaza as has been built could not be permitted to be built.
' W.P. 5193-92 ' Mst. Sughra Begum petition& is owner in possession of a house built over residential plot Nos.92 and 93, Block E/1, Gulberg-III, Lahore. This house is situated towards the back of residential plots 74- 75/E-1, abutting on Main Boulevard, Gulberg-III, Lahore. The original purchaser of these plots had constructed a bungalow over these plots. It is asserted that the said plots alongwith its superstructure were purchased by Sh. Abdul Qadeer, respondent No,3, who after demolishing the same is constructing a multi storeyed commercial building under the name of Hafeez Centre after obtaining approval/sanction of the L.D.A. The petitioner addressed a letter on 25th October, 1989, to the Director, Land Development, L.D.A. Informing him that she has not granted any no-objection certificate to anyone. She again applied to arrange supply of copy of the order of the Authority granting no-objection certificate to M/s. Hafeez Centre, copy of the no-objection certificate and approval of the adjoining property owners re: grant of no-objection certificate. Again on 26th March, 1991, legal notice was served on the Director-General to immediately stop construction of the Hafeez Centre and to withdraw the sanction if any in respect of the said Centre for construction of commercial plaza as otherwise legal proceedings shall be initiated in a Court of law. This writ petition was, however, filed on 6-6-1992.
2. On factual side the case of Sh. Abdul Qadeer respondent is that he had purchased the plots vide agreement to sell in April, 1990, and on the basis of said agreement to sell a suit for specific performance was filed and got decreed from Civil Court vide judgment and decree dated 8th April, 1990. In the Civil Court proceedings, no-objection certificate executed by the petitioner in W.P. 4881- 92 was filed alongwith the written statement. He, therefore, is estopped to take a contrary position now. The respondent was granted permission to convert the residential plot into commercial one by the L.D.A. Vide order dated 20th October, 1990. The building plan was not sanctioned On 2nd November, 1990, and the same on the construction commenced and the building has been already constructed exactly according to the sanctioned plan. Learned counsel further submitted that Haji Fazal Din, the predecessor-in-interest of respondent No,4 had earlier filed a writ petition (W.P. No, 6158-90) against the Lahore Development Authority as undue delay was being caused in sanctioning the building plan but the same was withdrawn as grievance was redressed by according necessary sanction and there was no need to prosecute the matter any further. It was maintained that construction of the building was completed in December, 1991; and since the commencement of construction, wide publicity through advertisements in the press was made for sale of shops and apartments etc. Of Hafeez Centre and the petitioners knew the nature of the building being constructed as even detailed building plans were exhibited for public inspection but during all this period no objection was ever raised to the notice of the respondent and when the building was complete and almost entire tenements, shops, apartments have already been sold the first petition was filed on 28th May, 1992. Learned counsel maintained that denial of Ahmed Javed Shah petitioner of having executed the 'no-objection certificate' is wrong and the affidavit submitted by him in this behalf merits to be discarded as his very conduct of obtaining national identity cards and passports in two different names makes him unreliable person. This disputed question of fact need not be gone into by this Court as for these proceedings it is sufficient to notice that the authorities on the basis of verification made before sanctioning the conversion to their satisfaction found that the no-objection certificate was executed by the petitioner. As regards plea of violating the privacy learned counsel for the respondents submitted that Ahmed Javed Shah petitioner is a co-sharer of the adjoining property which has now been partitioned amongst co-sharers and to his share has fallen one and half Kanals of the plot abutting on the road; that the petitioner has also issued advertisements inviting offers for sale of the property as non-residential and that this building was used already as non-residential building as for some period a school was being run and later on office was functioning in it. It was maintained that the plea of violation of privacy of home is not available to the petitioner and that in fact on account of concealment of true facts and deliberate misrepresentation the petitioner is disentitled to claim any relief in exercise of Constitutional jurisdiction.
3. As regards the second writ petition of Mst. Sughra Begum, learned counsel submitted that the petitioner has rented out her own building to Goethe Institute for the last many years and since then seminars, lectures and exhibitions and public meetings are being held in the said building social activities are going on and it was not disputed that the said building is being put to public use. It was added that the petitioner obtained permission to use her own premises for non- residential purpose on 5th June, 1990, and that it was on account of aforenoted situation prevailing at the site that the plea of violation of privacy of home has not been taken by her. It was pointed out that objection made by the petitioner in the letter noted above was turned down by the L.D.A.
Vide its letter dated 7th April, 1991, on the ground that 'no-objection certificate' was not required to be obtained from the petitioner as she was using her own building for non-residential purposes.
Moreover the letter objecting to the construction of a commercial building was not endorsed to the respondent No,4 and despite rejection of the protest letters the petitioner waited for fourteen months to file the writ petition on 6th June, 1992, in this Court when not only the building had been completed but also sold out to almost six hundred persons, the purchasers of the tenements, shops, offices and apartments. It was argued that had the petitioner raised objection valid in law, if any, and had the authorities on account thereof not granted the sanction of building plans, etc. The respondent would not have invested millions of rupees but now after construction and conveyance of rights to hundreds of purchasers the petitioners are indulging in blackmailing and are thus not entitled to any relief. Learned counsel in the context of the aforenoted facts and circumstances raised following objections to the maintainability of these petitions:--
(a) The persons who have purchased the tenements, are real affected parties but they have not been impleaded though sale was made publicly and as such these petitions are liable to be dismissed for not impleading necessary parties. Reliance was placed on Rawalpindi Improvement Trust v. Government of Pakistan (PLD 1970 Lah. 760), Muhammad Ibrahim v. Chief Settlement and Rehabilitation Commr. (PLD 1966 Lah. 396) and A.F.M. Abul Fateh v. Province of East Pakistan (PLD 1966 Dacca 178);
(b) petitioners having acquiesced in the construction and sale of property are disentitled to seek relief in discretionary jurisdiction;
(c) laches coupled with estoppel are also involved and hence the petitions are liable to be dismissed on these counts alone. Reference was made to The King v. Stafford Justices (1940) 2 K.B.
33 (46-47)--Settlement Authority v. Mst. Akhtar Sultana (PLD 1976 S.C. 410), Syed Azizud Din v.
Messrs Can Co. 1982 SCMR 912), Khalid Mahmood Khuhro v. Federation of Pakistan (1988 CLC 2320) and Nidamarthu Balasurya Bheemaraju v. Changati Mrutyanjayudu (AIR 1931 Mad. 354).
4. The legal questions raised by the learned counsel for the petitioners with respect to the main controversy are--
(a) since mandatory provisions of sections 13 and 14 of the L.D.A. Act, 1975, were not complied with, the building constructed in contravention of the Act and sub-clause (4) of Regulation 96 of the Building Regulations, 1984, is liable to be removed. It was explained that the scheme sanctioned under Town Improvements Act, 1922 by virtue of section 48 of the L.D.A. Act, 1975, is to be taken as a scheme made and prepared under the L.D.A. Act and such a sanctioned scheme cannot be modified by the L.D.A. Except in the manner prescribed by sections 13 and 14 of the L.D.A. Act.
According to the learned counsel the conversion of residential to commercial nature of the property amounts to modifying the scheme and such modification can take place only in accordance with the provisions of section 14 of the Act and as the methodology was not adopted the sanction of conversion granted by the L.D.A. Is unauthorised and illegal. In support reliance was placed on Mian Fazal Din v. Lahore Improvement Trust (PLD 1969 SC 223) and Ardeshir Cowasjee v.
M/s. Multiline Associates (PLD 1993 Kar. 237);
(b) Regulation 96 of the Building Regulations, 1984, framed under section 45 of the L.D.A. Act allowing conversion is ultra vires the Act of 1975;
(c) conversion could not be allowed even in terms of Regulation 96 as owners of the adjacent buildings did not grant N.O.C.;
(d) the discretion vesting in the L.D.A. To relax the conditions of the Building Regulations was exercised arbitrarily and illegally.
5. Learned counsel for the respondents on the other hand argued that the schemes referred to in these petitions were executed long ago and in the circumstances the question of modification of the scheme is neither involved nor can be raised. They maintained that in these petitions there has been a change of use of property and power to allow such conversion has been provided by section 38 of the L.D.A. Act, 1975, and as such reference to or reliance on sections 13 and 14 of the Act is inapt and misconceived. Learned counsel further submitted that the power to allow conversion has been properly exercised by the relevant authorities after considering the relevant aspects and that the building has been constructed after obtaining sanction from the authorities concerned.
6. As question of public importance was involved, learned Advocate-General was also required to address the Court on the legal questions raised in these petitions. He submitted that section 14 of the Act contemplated modification of scheme, change or alteration in lay-out plans till completion or execution of the scheme and as such change, alteration or modification after the completion of the scheme does not fall within the purview of the said section. He was of the view that after execution Of the scheme no change or modification can be effected, at all. He explained that modification, change or alteration in a sanctioned scheme can at best be made up to the time that rights or interest in individuals and private parties have not yet been created by making allotments or through sale of plots etc. But once rights have come to vest in individuals in plots, residential or commercial, as demarcated, no change in the scheme can take place without their consent. Learned Advocate-General argued that the power to permit conversion vesting under section 38 is to be exercised to the limited extent of conversion of use, the initial character of plot or property cannot be allowed to undergo a change. It was added that on a residential plot, a commercial plaza cannot be allowed to be constructed and that the Act, as it exists presently, does not give any power to change the initial character of the property envisaged in the sanctioned scheme. According to him if Regulation 96 of the Building Regulations, 1984, is to be interpreted as empowering modification of character of plot or property as being contrary to the main scheme of the Act. As regard the grant of relief to the petitioners in these petitions learned Advocate-General was of the view that the directions asked for should be refused and writ may not issue as it would cause immense loss to the respondents who has built the commercial building in accordance with the plan sanctioned by the authorities and persons who have purchased the apartments, shops etc. Have not been impleaded in these petitions and that granting of the writ in their absence would amount to condemning them unheard.
7. Mr. A.R. Arshad Malik, learned Legal Advisor for L.D.A. Did not agree with the interpretation of sections 13, 14 and 38 of the L.D.A. Act as canvassed by the learned Advocate-General as he was of the view that the L.D.A. Has power to allow conversion of residential plot in a scheme to different use or purpose and that initial character or type of a plot remarked for any purpose can be altered and changed during as well as after execution of the scheme. He maintained that section 14 contemplates modification of scheme approved for an area while conversion of a plot does not amount to modification of the scheme. He explained that the authority in discharge of its functions has to act in accordance with the directions of the Government in view of the provisions contained in section 17 of the Act and the residential plots finalised by the Provincial Government. It was added that section 38 of the Act empowers the Government and the authority to allow change even in original character of the property and Regulation 17 of the Building Regulations makes a general provision in order to support the provisions of the Act and terms of the scheme and the said provision cannot be read so as to denude the authority of the power vesting in it under section 38 of the Act. He argued that sub-clause (4) of Regulation 96 does not violate any provision of the Act and that in any case on account of laches, acquiescence and delay these petitions are liable to be dismissed.
8. Learned counsel for the petitioners in reply refuting the preliminary objections raised by the learned counsel for the respondents submitted that principle of laches and inordinate delay does not apply in the instant case and that the respondent cannot take refuge under these principles as the question involved is of maintaining the schemes of the area in the interest of citizens of Lahore and as the rights of privacy, as enshrined in the Constitution are being sought to be protected.
9. In order to appreciate the legal questions raised it appears necessary to reproduce the relevant provisions of law and Building Regulations referred to by the respective arguments. Sections 13 and 14 of the L.D.A. Act, 1975, read as under:-- 13.--(1) The authority shall, in such form and in such, manner as may be prescribed, prepare schemes for the area or any part thereof.
(2) All schemes prepared by the Authority shall be submitted to the Government for its approval, except those schemes, the provisional estimated cost of which does not exceed such limit as may be prescribed by rules or for which no loan or grant is required' from the Government.
(3) The Authority shall publish the sanctioning of any scheme in the official Gazette and shall forthwith proceed to execute the scheme.
(4) The publication of a sanction under subsection (3), shall be conclusive evidence that the scheme has been duly framed and sanctioned.
(5) No planning or development scheme shall be prepared by any person or local body or Government agency within the area except with the concurrence of the Authority.
(6) In every scheme provision for a plot or plots for mosques shall be made.
14. Any scheme prepared under this Act may, at any time, be amended or modified by the Authority in the same manner as may be prescribed for the preparation of a scheme.
' Relevant part of Regulation 96 of the Building Regulations, 1984, reads as under:-- 96-A. Area subjected to special control.---Notwithstanding the requirements of these Building Regulations, the buildings in the following areas shall conform to the additional special control specified for each hereunder:--
4. Gulberg Road, Main Boulevard in Gulberg, New Garden Town, New Muslim Town and Allama Iqbal Town and other areas subjected to conversion of use.
' Parties abutting on these plots and elsewhere may be subjected to change of use from residential to "Special Commercial" subject to prior approval of the Director-General, which may be granted by him only on production of No-Objection Certificate from the owners of adjoining properties and on payment of such fee as may be prescribed from time to time:
(a) The properties shall have--
(i) a minimum of 30 ft. (9.15 m) Building Line in case of properties abutting. Gulberg Road, Main Boulevard in Gulberg, New Garden Town, New Muslim Town and Allama Iqbal Town;
(ii) the Building Line as provided under Regulation 19 in areas other than those specified at 4a (i) and in no case it shall be less than 10 ft. (3m);
(iii) permanent open spaces around the building as prescribed for residential plot of the corresponding size;
(iv) a maximum coverage of 50% and maximum plot/floor area ratio of 1.8;
(v) not more than three storeys subject to maximum height. Of 38 feet (11.58m);
(vi) no window and other openings on the upper floors which may adversely affect the privacy of adjoining properties.
(b) Existing buildings fulfilling the requirements prescribed under 4 (a) may be permitted, on annual basis, for use as clinics, schools, restaurants, offices and banks.
(c) Existing buildings constructed in accordance with the regulations prescribed for residential plots but not fulfilling the Building Line provided under 4 (a) may be permitted, on annual basis, for use as clinics, schools and Government offices only.
(d) Permission for change of use as provided under 4 (b) and 4 (c), may be granted to the owner or the tenant as the case may be, provided in the later case, a valid agreement with the owner regarding renting of the building for the intended use is produced.
B. In the areas given in Regulation 96 (A), in addition to the other requirements of Building Regulation shall be provided as laid down.
' Section 38 of the L.D.A. Act reads:--
38. Any conversion of property to a different use or purpose than the one provided under a scheme, by a person or agency, without the previous approval of the Authority in writing shall be punishable with a fine which may extend to rupees five hundred per day from the date of its conversion till. The default continues or with imprisonment for a term which may extend to one year, or with both.
10. The contentions of the parties noted in para. 4 (a) in essence raise the questions:--
(1) Whether conversion of residential property to a different use e.g. Commercial, amounts to modification of a sanctioned scheme and if so whether such modification can be made only by following the procedure laid down for framing the scheme initially;
(2) whether the L.D.A. Is possessed of the power to allow conversion of a property to a different use or purpose than the one provided in the scheme; and
(3) what is the import to ' modification of a scheme' and 'conversion of property to a different use', how does both differ from each other?
' In order to fully appreciate the aforenoted contentions of the parties and to answer these questions it is necessary to examine the provisions contained in sections 13,14 and 38 in the context of overall scheme of the L.D.A. Act, 1975. The avowed object of the Act as given in the preamble is to establish in the public interest a comprehensive system of metropolitan planning and development with a view to improve the quality of life in the metropolitan area of Lahore through constitution and establishment of an authority called the Lahore Development Authority. The powers and functions inter alia assigned to the Authority are to prepare a metropolitan development plan which is to be updated periodically and for the said purpose to prepare annual development programmes for the area and to ensure compliance of the programmes in accordance with the priorities established in the metropolitan development plan. Section 6 of the Act further provides that the Authority may prepare, implement and enforce schemes for environmental, improvements housing, urban renewal including slum , improvement and re- development, solid waste disposal, transportation and traffic, health and education facilities and preservation of objects or places of historical, archaeological, scientific, cultural and recreational importance. These schemes are to be prepared obviously to achieve the objectives set forth in the.
Metropolitan development plan as well as the annual development programmes for the area. The matter of preparation and execution of schemes has.Been dealt with in Chapter IV of the statute.
Section 13 provides that the Authority shall in such form and in such manner as may be prescribed prepare schemes for the area or any part thereof. These schemes so prepared are to be submitted to the Government for its approval except those schemes the provisional estimated cost of which does not exceed such limit as may be prescribed by rules or for which no loan or grant is required from the Government. The sanctioning of the scheme is to be published by the Authority in the official Gazette and thereafter it is to proceed to execute the scheme.
11. Section 14 then provides that any scheme prepared under the Act may at any time be amended or modified by the Authority in the same manner as may be prescribed for the preparation of a scheme. It will be seen that the form and the manner of the preparation of a scheme initially is to be prescribed. Section 3, subsection (j) defines ' prescribed' as prescribed by rules or regulations.
Section 44 of the Act confers power on the Government to make rules for carrying into effect the purpose of the Act. Learned Legal Advisor for the respondent-Authority submitted that rules were framed according to his instructions but the same could not be made available to him as the relevant file seems to have been misplaced. Despite grant of time, officers of the respondent- Authority could neither produce the file pertaining to the framing and approval of the rules nor could find out the Gazette iu which the rules would have been notified. A copy of the Gazette was not available in any of the offices of the Authority including that of the Director-General. Would it not be reasonable in the circumstances to presume that all these officers have not consulted these rules ever while exercising their functions and powers, as otherwise they would have been able to point out at least the relevant Gazette of the Government. It seems that the functionaries of the Lahore Development Authority instead of getting guidance from the rules are conducting the affairs of the Authority according to their individual thinking, whims or preferences. Had these officers cared to find out parameters of their authority, they would have inquired about the rules on. The subject and the file of the rules if at all rules were framed would not have been misplaced beyond retrieval. The functionaries exercising statutory powers should realise that rules are framed not only to achieve the objectives of the main statute but also to curb arbitrariness, personal whims or preferences and to infuse confidence in the citizen by assuring them that matters affecting them will be dealt with in accordance with the prescribed procedure. It is also intended to ensure equal treatment of law, fairplay and even handed justice. No explanation was offered by the concerned officers of the appalling situation prevailing in the Authority. The casual attitude exhibited during the hearing is reprehensible. The misplacement of files in the Authority is common day occurrence. Even the file of Hafeez Centre was not available. The Chairman/Chief Minister, Punjab, will be well advised to take corrective measures in order to streamline the working of the Authority and to improve the efficiency of its officers and also to rid the citizens of the malpractices and maladministration.
12. Learned Legal Advisor of the Authority was thus not in a position to state as to what is the mode and manner of preparing the schemes. Same is the position of the learned counsel for the petitioners and contesting respondents. The prescribed modalities of preparing schemes are not known, it is idle to urge that modification or amendment in the scheme was not made in accordance with the mode or manner of preparing the scheme initially. What at best can be said seeing the provisions of section 13 of the Act is that a scheme after its preparation is to be submitted to the Government for its approval, the provisional estimated cost of which exceeds the limit prescribed by the rules as otherwise the scheme the provisional estimated cost of which does not exceed the prescribed limit or for which no loan or grant is required is not to be submitted to the Government for its approval.
13. However, the power to amend or modify the scheme can be exercised by the Authority at any time by adopting the same mode as is prescribed for the preparation of the scheme initially. Would the words ' any time' used in section 14 of the L.D.A. Act, 1975, imply, imply that alteration or modification in the scheme can be made even after execution and completion of the scheme or this power to amend is available till the time of completion of the scheme?
' The next question to be examined is whether any alteration or change in the character of any property or its conversion to use other than the one indicated in the scheme amounts to amending or modifying the executed scheme? If so, what would be the position, if the scheme has already been executed and completed? In order to find answer of these questions comparative study of the provisions relating to sanctioning of the scheme and its amendment or modification contained in the Town Improvement Act, 1922 (Punjab Act VI of 1922) and Lahore Development Authority Act, 1975, appears appropriate. Chapter VI of the Town Improvement Act, 1922, contains provisions relating to preparation, sanctioning and alteration of the schemes. Section 41 thereof confers power on the Provincial Government to sanction or reject a scheme. Section 42 provides for notifying sanction of every scheme except those mentioned therein and such a notification is conclusive evidence of the fact that the scheme has been duly framed and sanctioned. Section 43 provides that a scheme may be altered by the Trust at any time between its sanction by the Provincial Government and its execution but such alteration shall not be made without previous sanction of the Provincial Government if alteration is estimated to increase the estimated cost of executing a scheme by more than the limit prescribed and that if any alteration involves the acquisition otherwise than by agreement of any land the acquisition of which has not been sanctioned by the Provincial Government, the procedure prescribed in the foregoing sections of the chapter shall so far as applicable be followed as if the alteration were a separate scheme. Thus the concept of alteration is limited to the time between its sanction and execution. Section 55 (2) of the Act provides that when any open space for the purposes of ventilation or recreation has been provided by the Trust in executing any scheme under the Act, it shall on completion be transferred to the Municipal Committee by resolution of the Trust and shall thereupon vest in and shall thenceforth be maintained, kept in repair, lighted and cleaned, by the Municipal Committee. The vesting of the streets in the schemes on completion is also contemplated by subsection (1) of section 55 of the Act and upon such vesting of the streets in the Municipal Committee the same are to be maintained, kept in repair, lighted and cleared by the Municipal Committee. Thus after the execution of the scheme, the same is to be transferred to and is to vest in the Municipal Committee or the Municipal Corporation, which henceforward is to maintain the scheme. The Improvement Trust cannot obviously after handing over the scheme intervene so as to alter or amend the scheme. Thus the question of amendment or alteration would arise only up to the time of execution and completion of the scheme and is so provided in section 43 of the Town Improvement Act, 1922.
14. Sections 41 and 43 of the Act of 1922, came to be examined by the Supreme Court in the case of Mian Fazal Din v. Lahore Improvement Trust (PLD 1969 SC 223). In this case a plot of land was earmarked in the sanctioned scheme for construction of a market. Subsequently the Trust made a little alteration and a portion out of the plot reserved for the proposed market was reallocated for the construction of a mosque. It was urged before the Supreme Court that after a scheme had been sanctioned by the Government the Trust was not at liberty to alter or modify the scheme at its sweet will without consulting the people of the locality concerned or those who are vitally affected by the alteration or modification. The questions which were raised were (i) whether the Trust is powerless to alter the scheme once it had been sanctioned by the Government without following the procedure laid down for the framing of a scheme initially and (ii) even if section 43 of the Punjab Town Improvement Act, 1922, gives power to the Trust to alter or modify a scheme, whether the modification made in the case required at least the previous approval of the Government? It was held that the Act was a complete code in itself; "the power of alteration or modification if regulated by the statute itself must prevail over the general principles enunciated in section 20 of the General Clauses Act; section 43 of the Act is to be read in the light of section 41 and reading in this context it seems that intention of the statute was that an alteration of a scheme made after its sanction by the Government was not to be published except in cases specified in the said section". It was further observed that "there seems, therefore, no scope for the argument that under the scheme of the Town Improvement Act no alteration could be made in a sanctioned scheme except by following the procedure prescribed for framing a scheme" and "an alteration of modification of a sanctioned scheme is permissible in the manner prescribed by section 43 of the Act which seems to indicate that only where the net cost of executing is estimated to be increased by more than Rs,50,000 or 20% of such cost by the proposed alteration or the alteration involves the acquisition of further land the procedure laid down must be followed otherwise the Improvement. Trust has the power to make within these limits other alterations ink the scheme".
The observations at page 239 being pertinent may also be reproduced:-- "For these reasons I am of the opinion that the Town Improvement Act does not oblige the Improvement Trust to follow the same procedure for the alteration of a sanctioned scheme as it would have to follow for the framing of a Scheme if the modification or alteration is not of a radical nature or such as to render the Scheme itself impracticable or unfit for the purpose for which it was originally designed."
' It was, therefore, held that the Trust was not wrong in taking the view that if could make the alteration or modification impugned, namely the change of user of part of the site without the previous sanction of the Government and that the modification was neither of a radical nature nor fell within the mischief of section 43 of the Town Improvement Act.'
15. The position obtaining under the L.D.A. Act, 1975, is that a sanctioned scheme can be amended or modified by the Authority by virtue of power vesting in it under section 14 except that alteration or amendment of the scheme will require sanction of the Government if the provisional estimated cost of the alteration etc. Exceeds the limit prescribed by the rules.. Section 14 further provides that amendment and modification in the scheme is to be made by adopting the same modalities as are provided for preparation of the scheme initially. The view expressed by the Supreme Court in Fazal Din's case (supra) is applicable equally to the provisions of sections 13 and 14 of the Act as main features of the relevant provisions of both the statutes are common. So the modalities will not have to be followed as held in the case of Fazal Din (supra) if the modification or alteration is not of a radical nature or such as to render the scheme itself impracticable or unfit for the purpose for which it was originally designed. However, every scheme after its completion and execution may give rise to some rights to the individual's owning property in the scheme, as to open spaces, covered area, number of storeys and nature or use of property as all these things stand duly regulated under the scheme. The property holders within the allocated area of the scheme and even its permanent residents can claim observance of necessary features of the relevant scheme and the local authority operating in such area is obliged to ensure observance of the purposes, objects and targets of the scheme by securing continuity of such schemes.
16. It was because of preservance of such rights that section 48 (3) inter alia provides that schemes prepared and executed so far as they are consistent with the provisions of the L.D.A. Act, 1975, continue in force and be deemed to have been made, prepared and executed under this Act.
Subsection (2) of this very section deals with the schemes prepared under the Town Improvement Act, 1922, which are to be taken over by the Authority and executed under the provisions of the L.D.A.
Act, 1975, though on establishment of the Authority under this Act the Town Improvement Act, 1922, ceases to apply to the area. It, therefore, follows that the observance and continuity of the schemes and the rights, if any, claimable under the executed schemes are subject to the L.D.A. Act, 1975, specifically and other laws of the land generally.
The learned Advocate-General was, therefore, right in contending that section 14 of the Act contemplates amendment or modification of a scheme till completion or execution of a scheme and that any alteration, change or modification after completion of the scheme does not fall within the purview of the said section but he was not right in asserting that after execution of a scheme no change or modification can be effected at all. The acceptance of this contention would render section 38 redundant.
17. The provision making conversion of property to a different use without previous approval an offence contained in section 38 is not to be found in the Punjab Town Improvement Act, 1922. The reason for non-inclusion of such a provision appears to be that after execution of a scheme the same is to be transferred to the local body concerned, and is then to be controlled and managed by it in accordance with its own laws. But in the case Lahore Metropolitan area, the Lahore Development Authority is not only to prepare, execute and complete different schemes envisaged in the Act but after completion is also to manage and maintain these schemes. It is, therefore, reasonable to draw distinction between amendment or alteration of a scheme; and conversion of a property to a different use or purpose. Any conversion of the purpose or use of property has to be within the framework of the scheme is not to be of radical nature requiring execution of additional works or is not to be of the kind which may render the scheme unfit for the purpose it was originally designed. If the conversion of property to different use or purpose is not of the nature and kind mentioned above, the proposed conversion would not amount to amendment or alteration of the scheme. The power to allow conversion of property to different purpose or use has been recognised in section 38 of the Act. The rights even if claimable by any property owner in a scheme have to be subjected to the power granted by the Legislature to the Authority by virtue of section 38 of the Act. But it would not be correct to circumscribe or limit the power vesting under section 38 in the Authority to the extent of aljowing conversion of the use of the property subject to maintaining or retaining its initial character. The conversion of a property to a different use may include change in the initial character of the property. The Legislature not only has provided an inbuilt mechanism for preserving basic features..And characteristics of the scheme but has at the same time conferred power on the Authority to permit conversion of a property to a different use or purpose. This was so done by making unauthorised conversion punishable. So the property owners who desire to convert their property to a different use or purpose are made to seek permission from the Authority so that interest of other property owners in the vicinity is not put to jeopardy unnecessarily. The permission to proposed conversion is to be refused if it has the effect of burdening the scheme or interfering it.In material respects by rendering it unworkable or unfit for the purpose it was designed and executed.
18. This intendment of the framers of law is evident even from the proved Building Regulations. It will be seen that Regulation 17 provides that no land or building shall be used in a manner inconsistent with the use prescribed in any approved scheme or the master plan as the case may be.
Regulation 51 provides that notwithstanding the provisions of Regulation 17 a housing unit may include a part, not exceeding one-half of its floor area, to be used as office associated with the resident's profession e.g. a doctor's clinic or office, a lawer's office or technical consultant's office etc. Part 6 of the Regulations deals with areas subjected to special control. Main Boulevard in Gulberg, as per Regulation 96 falls within the category of special control area and clause 4 (quoted above) of Regulation 96 makes specific provisions with regard thereto. According to this clause properties abutting on the Main Boulevard in Gulberg may be subjected to change of use from residential to special commercial subject to (a) prior approval of the Director-General which is to be granted only on production of no-objection certificate from the owners of adjoining properties and (b) on payment of prescribed fee. "Special commercial" includes offices, restaurants, hotels and show-rooms. Nothing turns from the explanation of the term "Special commercial" as it gives a too general description. The other thing to be noted is that according to this clause properties in respect of which conversion is to be allowed must obtain a minimum of 30 feet building line in case of properties abutting on the Main Boulevard in Gulberg; permanent open spaces around the building as prescribed for residential plots of the corresponding size; a maximum coverage of 50% and maximum plot/floor area ratio of 1-1!8; and not more than three storeys subject to maximum height of 38 feet. It also provides that no windows and other openings on the upper floors which may adversely affect the privacy of adjoining properties will be made. Sub-clauses (b), (c) and (d) confer power to permit use of existing buildings which either fulfil the aforenoted requirements (of sub-clause (a)) or not for use other than that which was the initial character of the building. This would indicate that the structure of the existing building so as to meet the requirement of clause
(a) can be altered.
19. At this stage reference may also be made to Regulation 98 of the Building Regulations as it confers power on the Director-General to allow relaxation of the Building Regulations in special cases but while exercising this power he is enjoined by law to record sufficient reasons in support of the order allowing relaxation. These Regulations as such advance the scheme of the statute and as such cannot be dubbed violative of the scheme or the intendment of the law-maker.
20. The case of Ardeshir Gowasjee v. Multiline Associates (PLD 1993 Kar. 237) of the Sindh High Court on these questions is not relevant as the provisions contained in the Sindh Buildings Control Ordinance, 1979, and Karachi Buildings and Town Planning Regulations, 1978, are materially different. The contention that deviation from the Regulations can be permitted or compounded by the concerned authorities under the aforesaid Ordinance or the Regulations was repelled by holding as under:- "No provision, either in the said Ordinance or the Regulations has been referred to by Mr. Pirzada wherefrom power to permit deviations from the provisions of the Regulations while granting approval of the building plans by the said Authority, except by condonation can be spelt out. A plain reading of subsections (1) and (1-A) of section 19 indicates that the authority or any person authorised by it in this behalf has been permitted to compound any offence under the aforesaid Ordinance on such terms and conditions as may be prescribed. As subsection (1-A) occurs after subsection (1) in section 19, the expression "any offence" clearly appears to be referring to the contravention of the provisions of the Ordinance as referred to in subsection (1) of section 19 as any such contravention has been made punishable as an offence by the said subsection.
Consequently power conferred on the Authority or any person authorized by it to compound an offence has reference to such offences as are referred to in subsection (1). Therefore, subsection (1- A) cannot be construed as authorising the authority to condone deviations from the said Regulations. But, as has been held in the case of Mst. Feroza Hajiani, such power referred to in the said subsection is analogous to the power of the Court under section 345 of the Criminal Procedure Code. Consequently, as has been further held in the said case, such process can only absolve the offender from being prosecuted and punished for such offences but the said provisions in no manner can empower the authority to condone or regularize erection of a building in violation of the Regulations Consequently, although Regulation 16 permits compounding of certain transgressions or deviations made by the owner of a building, but the power of the authority to permit composition is not an absolute power but the same is subject to restrictions placed by the said proviso to Regulation 16. It is also pertinent to point out that Regulation 16 refers to condonation of an offence that is to say, it can be invoked only in case where the owner of the proposed building has already made deviations either from the approved building plan or the provisions of the Regulations. It is only in such cases that power has been conferred on the said Authority to compound the offence. But the same in no way can be construed so as to permit contravention of any Regulation otherwise than by condonation. This is further indicated by Regulations 20, 23, 24 and 25 which have been reproduced earlier in this judgment. Regulation 24 requires a person who has created a building to submit a completion plan of the building showing deviations made in the building, if any, from the sanctioned building plan. Regulation 25 indicates that the concerned authority may refuse permission to erect or re-erect building if the proposed building contravenes or is in any manner inconsistent with any building or zoning Regulations or restrictions. Consequently, as is clear from the above provisions, neither section 19 of the aforesaid Ordinance nor Regulation 16, permits compounding of any offence when restriction imposed by the Regulations on construction of high-rise buildings have been contravened. Therefore, in our opinion, the Karachi Building Control Authority is not competent to grant permission in respect of construction of a high-rise building in contravention of the provisions of the Regulations."
21. As against above section 38 of the L.D.A. Act while making unauthorised conversion of property to a different use or purpose an offence punishable with fine also provides for an inbuilt power to accord previous approval in writing to convert the property to a different use or purpose. Whether this conversion would require a structural change or not that has been left obviously to the discretion of the Authority and the Building Regulations cater for that situation by making necessary provisions which have been referred to above. So cumulative reading of the provisions of the statute and Building Regulations, 1984, framed under the Act would lead one to the conclusion that power to allow conversion of property to a different use which may entail change in the character or structure of a particular property -vests in the Authority. The existence of the said power thus cannot be denied. The question as to how that power is to be exercised is a different matter. This power obviously is to be exercised keeping in view the provisions of the metropolitan development plan, the annual development programme and the schemes executed and also the rights and interests existing in favour of owners of the adjoining properties of enjoying their property beneficially, suitably and without any interference in their privacy. This all, however, will by subject to the demands of public interest and requirements of maintenance of water supply, sewerage and drainage system and other related services.
22. These considerations and prohibitions envisaged by the Act and the Building Regulations as are intended to preserve the basic features and objectives of the scheme, to secure continuity of the public utilities and services provided under the scheme for the benefit of the owners and permanent residents equally apply to the Authority in which though power to allow conversion of property to different use or purpose vests but such power it cannot exercise so as to violate with impunity the rights accruing to the owners and residents. The Authority cannot convert public parks, open spaces, playgrounds or other amenity plots to other use or purpose e.g. Residential or commercial, for allotment to favourites of the party in power. The instances of conversion of properties including amenity plots to different use for enrichment of the influentials are well known.
The allotments of green-belts, open spaces and amenity plots as residential plots or for installing petrol pumps etc. By abusing power of conversion due to political manoeuving of the parties in power have also been made. This menace of conversion of amenity plots needs to be curbed by taking away the power of conversion is respect of amenity plots. The Legislature may, therefore, add a provision in the L.D.A. Act, 1975, to the effect that no amenity plot reserved for public utility services, beautification or environmental planning shall be converted to or utilised for any other purpose. The other aspects which should receive attention of the Government is of allowing composition of offences and condoning violations of the Building Regulations. The L.D.A. Act in section 40 provides for removal, demolition or alteration of the structure, building or work so as to bring such erection or construction in accordance with the provisions of the statute. There is no provision contemplating condoning violations of the statute in the Act itself but the Building Regulations though in Regulation 12 (iii) provides for penalties for violations yet by adding Appendix D almost every violation has been made compoundable on payment of prescribed fee. The glaring violations of the Building Regulations are being committed with impunity and the result is that the Authority on account of political pressure is not able to seek compliance of these Regulations. This situation also needs correction through legislative measure. The menace of conversion of amenity plots and condoning of violations in constructed buildings has been curbed and controlled by the Sindh Government by promulgating Ordinances banning conversion of amenity plots and providing that no offence relating to building works commenced or carried out in violation of the approved plans shall be compounded. The matter of composition of .Offence apart, even before the amending Ordinance of 1994, the Sindh Building Control Ordinance, 1979, and K.D.A. Order, 1957, in no manner empower the authority to condone or regularise erection of a building in violation of the Regulations. The same provisions in my view should be introduced in the statute so as to curb the malpractices being indulged into her.
23. This brings me to the question whether the power and the discretion so vesting was exercised in the instant case in violation of the provisions of Regulation 96 and in illegal and arbitrary manner. It was urged that in the instant case the petitioners who are adjoining owners did not grant no objection certificate and that the relaxation allowed as to the number of storeys and height of the building is arbitrary and illegal. The respondent did produce a ' no-objection certificate' statedly signed by Ahmad Javed Shah, petitioner, who, however, denied execution thereof but this denial as has been observed in one of the paras above, is inconsequential. Mst. Sughran Begum, the other petitioner, admittedly did not sign any no-objection certificate but the production thereof has been dispensed with on the basis that in the commercialization policy approved by the Government production of such a no-objection certificate from the adjoining owner who is himself using his property for the purpose other than residential is not necessary. The provision requiring production of no-objection certificate of the adjoining owners intends to obviate subsequently challenge mainly on the ground of violation of privacy. In this case G non-granting of no-objection certificate by Mst. Sughra Begum is thus inconsequential.
24. The plea that discretion in allow conversion and relaxing the requirements of sub-clause (a) of clause 4 f Regulation 96 was exercised illegally has merit. The perusal of the relevant files of the Authority revealed that application to permit conversion of residential building to commercial use was processed as if such a permission has to be granted under the orders of the High Court. This impression was sought to be created merely on account of. Pendency of a writ petition (W.P. 6158- 90) though no such direction was passed by this Court. Instead the order passed was to the effect that "Pendency of this writ petition shall not restrain the respondents from disposal of the application submitted by the petitioner for commercialisation of their premises in accordance with law, policy and precedent". This writ petition was then got disposed of as withdrawn because meantime the purpose of obtaining the sanction had been achieved. Secondly, details of the building to be put up were neither given nor obtained. Sanction of conversion of the property to raise a commercial building was granted without any consideration to the effect thereof on the existing H services and utilities. The authority thus granting permission was oblivious of the questions whether the building to be built will be such as would not have the effect of bogging down the sewerage, the water supply and the drainage systems and its effect on traffic density and electricity services. All the considerations which are germane to the question of exercise of power were neither present nor were considered by the Authority while granting the permission.
The permission was granted in oblivion of all these factors and it was thereafter that building plans were submitted to the concerned department showing construction of almost 600 units. The power was thus exercised arbitrarily and illegally in allowing conversion. This finding alone would have sufficed to declare the order permitting conversion as illegal. Similarly the power to grant relaxation as regards the height and number of storeys was also exercised improperly as while granting the relaxation reasons thereof required by Regulation 98 were not recorded.
25. Next comes the question of construction of windows and other openings on the upper floor which allegedly has the effect of violating the privacy of the adjoining properties of the petitioners.
In other words, are the petitioners entitled to invoke the principle of inviolability of privacy of home.
This question must be answered in the negative. Mst. Sughra Begum is already using her property not for residential purposes but otherwise as the Goethe Institute housed therein is holding public seminars and classes etc. Therein. The plea that as the original character of the building is residential and as public or commercial use of the building may terminate in future the petitioner can invoke right of privacy of home, has not impressed me is at the present the building is not being used as a 'home' and as such no grievance can be made on that score. Similarly the property owned by Ahmad Javed Shah, petitioner, is also being used for a public purpose; a school and thereafter an office was housed therein and now structure existing thereon has been demolished and notice for selling the property as commercial property has already been advertised. The publication of notice by Ahmad Javed Shah in the media was not controverted by his learned counsel during arguments. It was for these reasons that in this petition reliance was not placed on the Fundamental Right enshrined in Article. 14 of the Constitution which secures privacy of home. It is also pertinent to note that it was not the case of the petitioners that on account of building of a multiunit four-storeyed commercial building comprising of almost 600 units (commercial and residential) any of the utilities and services like water supply, drainge, sewerage or electricity have been adversely affected or that any of the systems stands blocked or in any manner materially affected to the inconvenience of the petitioners or other residents of the scheme. The residents of the scheme specially the property owners in the vicinity should thank their stars that these services and utilities have not been adversely affected despite construction of a four-storeyed building comprising 600 residential and commercial units though the officers of the L.D.A. Charged with the authority to maintain these services by performing their functions and exercising their power vesting in them intelligently and for the purpose of proper development operations and maintenance on the systems had not given any consideration to these aspects.
The statutory authorities in whom the statutory discretion vests are required by law to exercise their discretion for the advancement of purposes of the statute which vests the power as violation or transgression of any of the purposes would not advance the public interest. The superior Courts have laid down principles for exercise of discretion by the competent authority. In the case of Manthar Ali M. Jatoi v. Government of Sindh (1988 PLC (C. S.) 344) it was observed that discretion vesting in a competent authority has to be exercised in good faith and in accordance with law such discretion should be exercised justly, fairly reasonably and should not be exercised arbitrarily or capriciously. Again the Supreme Court in Federation of Pakistan v. Muhammad Aslam (1986 SCMR 916) observed that all executive power has to be exercised fairly and justly, for advancing the object of the legislation. In other words every such exercise of power has to satisfy the test of reason and relevance. Thus the competent authority is under legal obligation to generally address itself to the matter before it. It must act in good faith, must have regard to all the relevant considerations, must not be swa yed by irrelevant considerations and must not seek to promote purposes alien to the letter or spirit bf the legislation that gives the power to act and must not act arbitrarily or capriciously.
In the instant case as has been pointed out above the discretion was exercised without paying any attention to the considerations germane to the issue and even without knowing as to what sort of building, of what dimensions and of what height and storeys is intended to be built and what, if any, with it have effect on the adjoining properties or on the drainage, water supply or sewerage capacity of the scheme traffic density and electricity etc. These findings as noted above were sufficient to hold that the permission granted was illegal and arbitrary.
26. In the instant case despite the said findings, I am persuaded not to grant the declarations and the injunctions prayed for. The reason therefor is that in the facts and circumstances of the case the objection to the maintainability of the writ petitions must prevail. The relevant facts at the cost of repetition may be recapitulated.
' The permission to convert residential plots to commercial plots was granted on 20th October, 1990; the building plan was sanctioned on 28th November, 1990, and immediately thereafter the construction commenced and the same was almost completed in December, 1991. These two petitions were filed respectively on 28-5-1992 and 6-6-1992 and before that almost all the units had been sold out to different parties. This sale, it was not controverted, commenced through public advertisements from the very commencement of the construction of the building. These parties who have thus purchased their respective units pursuant to the public notice are necessary parties to these petitions but they have not been impleaded despite the objection taken. The declaration prayed for if granted and direction to demolish the building if given will in fact affect the persons who have purchased various units of the building. Obviously these persons cannot be condemned unheard. They having purchased the units which have been constructed and completed after obtaining sanction from the competent authority are justified to believe that the building was put up legally and authorisedly. The principle that no relief can be granted when the affected persons have not been impleaded is well-settled. See A.F.M. Abul Fateh v. Province of East Pakistan (PLD 1966 Dacca 178), Muhammad Ibrahim v. Chief Settlement and Rehabilitation Commissioner (PLD 1966 Lah. 396) and Rawalpindi Improvement Trust v. Government of Pakistan (PLD 1970 Lah. 760).
27. The next objection was that the petitions suffer from laches coupled with estoppel and acquiescence. It was asserted that the construction was commenced in November, 1990; sale notices were issued with the commencement of construction; the plans of the construction were available for public inspection as it was on the basis of those plans that the public was invited to purchase the various units and as such there was a public notice as to the type of building which was being constructed. In spite of such a public notice the petitioners allowed the builders to construct the building and to sell it and they thus acquiesced with the so-called violation of their right, if any, and after the building was completed and had been sold to different persons they cannot maintain these petitions and seek relief in exercise of extraordinary Constitutional jurisdiction and the delayed challenge made in the circumstances suffers from inordinate delay and laches. Reliance was placed on The King v. Stafford Justices (40) 2KB 33), Sahibzadi Nasima Begum v. Settlement and Rehabilitation Commissioner (1982 SCMR 913) and Khalid Mahmood Khuhro v. Federation of Pakistan (1988 CLC 2320).
28. In reply it was argued that Mst. Sughra Begum did write to the authorities to supply her copies of the relevant documents and that in view of the objections raised before the authorities the principle of acquiescence, estoppel and lathe's do not apply. The letters written to the Lahore Development Authority have been dealt with in one of the paras. Above and it has been observed that objection direct to the respondent was never conveyed and that the objection raised before the L.D.A. Was rejected on 7th April, 1991 whereafter Mst. Sughra Begum went into slumber and woke up only 1-1/2 years later subsequent to the rejection of her objection to file the writ petition on 6-6- 1992. Reliance on the case of Ardeshir Cowasjee v. Multiline Associates (PLD 1993 Kar. 237) by the learned counsel is also inapt as factual background of the two cases is altogether different. In the instant case the petitions do suffer from laches and inordinately giving rise to equities against the petitioners. Had the objection been taken directly to the respondent builder and had this Court been moved in time construction of the building, could be stopped at appropriate time and the parties and persons who have purchased the units on the belief that the construction of the building has been made legally and authorisedly would not have invested millions of rupees in the purchase of these units. Delay in these circumstances is inordinate as well as equity considerations are against the petitioners. It was for these reasons that the learned Advocate-General canvassed that even if the construction of the building is held to be unauthorised and illegal the petitioners are not entitled to any relief as their petitions suffer from ladies and they stand estopped on account of acquiescence. In fact it was urged by the respondents that the petitions have been filed with a view to blackmail the respondent for obtaining undue financial gain and such a blackmailing should not be permitted to prevail specially when one of the petitioners is using her property for commercial purposes and the other has advertised sale of his property as commercial one and that by construction of a commercial building their property has gained through increase in commercial value of their own properties. These are the considerations which have persuaded me not to grant the declarations and the directions prayed for despite recording the above noted findings. These petitions, therefore, fail and are dismissed. The parties are, however, left to bear their won costs.