1. DR. GHOUS MUHAMMAD, J.---The petitioner, a private limited company, established for carrying on the business of Developing, Civil Engineering and Town Planning has sought the following reliefs in this petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973:-- "(1) Declaration that the petitioner is entitled to construct building consisting of ground plus nine floors on Plot No,ST-2, Main Shahrahe-Faisal, Karachi under the provisions of Cantonments Act.
(2) Declaration that the order/letter dated 3-11-1998 of respondent No,2 is illegal and void.
(3) Direction to respondent No,2 to issue No-Objection Certificate to the petitioner to construct the building consisting of ground plus nine floors on the aforesaid plot in case this Hon'ble Court comes to a conclusion that letters dated 18-9-1995 and 8-1-1998 did not amount to requisite N.O.C. And that such N.O.C. Was requirement of law.
(4) Direction to respondents Nos.1 and 2 to refrain from interfering with the construction of the building up to Nineth floor on Plot No,ST-2, main Shahrah-e-Faisal, Karachi by the petitioner." Briefly stated the respondent No,1 i,e, Karachi Cantonment Board is the competent Authority to approve the building plan in respect of land falling in a cantonment area. It is the case of the petitioner that it purchased a Commercial Plot bearing No,ST-2, Shahrah-e-Faisal from its owner Mst. Soham Ali Somy vide conveyance deed dated 20-5-1997. This plot vests in the Karachi Development Authority. It would also be relevant to mention here that the father of Mst. Soham Ali Somy who was the earlier owner of the plot in question had enquired from the respondent No,3 (Military Estates Office, Karachi) about the status and the right to construct on the plot in question.
2. The respondent No,3 submitted a reply vide letter dated 18-9-1995 and this letter has come on record as Annexure 'B', which reads as under:-- NO. DR.-15/ST-2/12 MILITARY ESTATES OFFICE, KARACHI CIRCLE, 252, SARWAR SHAHEED ROAD, KARACHI CANTT. Dated the 18th September, 1995 To Station Headquarters, Karachi. Subject: COMMERCIAL PLOT NO.ST-2, MAIN SHAHRAH-EFAISAL, DRIGH ROAD, KARACHI Please refer Station Hqs. Letter No,2118/208/Q-2, dated 6-7-1995. This office is not in knowledge of any construction process by Army on subject plot of land. As for right of ownership on the plot by the applicant, the statement is correct on the following grounds:--
(i) It was decided in the meeting held on 14-9-1972 attended among others by General Tikka Khan, HJ., HQA, S.Pk and Chief of Army Staff and Mr. Jam Sadiq Ali, Minister Local Government, Government of Sindh (copy attached Annexure 'A') to hand over 150' wide strip of land from the land of Bk No,44, (opposite Naval Flats) along the Workshop up to Saddar Police Station to K.D.A.
(ii) GHQ, QMB's Branch (Qtg. Dte) Letter No,3615/16/QTg-IA, dated the 19-9-1972 conveyed decision of GHQ for the transfer of 150' wide strip of land to K.D.A. (Copy attached Annexure 'B').
(iii) In the meeting held on 4-10-1972 attended among others by Major-General Asghar A. Khokhar, QMG decision was taken to hand over 150' wide strip of land immediately to K.D.A. (refers pages 4 and 5 of the minutes attached Annexure 'C' and extract of the minutes Annexure 'D').
(iv) The 150' wide strip of land was handed over and transferred to K.D.A. Immediately, formal handing/taking over was completed on 24-4-1974 (vide Annexure 'E').
(v) This fact was also confirmed in the meeting held on 20-6-1974 attended among others by QMG Major-General Asghar A. Khokhar (vide Annexure 'F').
(vi) Since K.D.A. Was allowed to auction 150' wide strip of land, the auction of plots was done by K.D.A. In term of plan. The subject plot forms ST-2 of the lay out plan (attached Annexure 'G'). In the light of above the subject plot does not vest in Ministry of Defence, it rather vests in K.D.A.
3. Which had rightly disposed of the same through public auction and executed leasehold rights in favour of applicant. Consequently the applicant continues to have bona fide rights to raise construction at site without any obstruction without any further NOC from Army.
4. (JAMAL UDDIN ANSARI), Military Estates Officer, Karachi Circle, Karachi. The respondent No,2, Station Headquarters, Karachi vide its letter dated 18-5-1996 also confirmed the ownership of the said plot of Mst. Soham Ali Somy and the respondent No,2 "gave its no objection for construction on the site vide letter dated 21-5-1996. Copies of these two letters have come on record as Annexures 'C and C-1'. It is a case of the petitioner that although no N.O.C. Was required in view of what was stated in the letter dated 18-5-1995 (supra) the petitioner was also informed by the respondent No,2 about the re-issuance of the NOC vide letter dated 8-1-1998 (Annexure 'D') which reads as under:-- Station Headquarters, Karachi Cantonment Telephone: 5604704 2118/208/Q-2, 8th January, 1998. To M/s. Century Links Development Corporation (Pvt.) Ltd., Karachi. Copy to: Military Estate Officer, Karachi. SUBJECT: N.O.C. For construction on Plot No,ST-2 (Commercial) on Main Shahra-e-Faisal.
(1) This is to inform you that N.O.C. In respect of above plot issued vide this Office Letter No,2118/208/Q-2, dated 18th May, 1996 was suspended vide this Office Letter No,2118/208/Q-2, dated 12th March, 1997 under the orders of competent authority. However, now the approval has been accorded for NOC vide GHQ Letter number 3615/16/40 Qtg-1A, dated 16th December, 1997 and Headquarters S Corps Letter Number 231/2/IC-24/q(P), dated 29th December, 1997 and Headquarters Karachi Logistics Area Letter Number 116/3/Kci/St2/47/Q-2, dated 8th January, 1998.
(2) Please confirm receipt. Lieutenant-Colonel for Station Commander (Muhammad Arshad Abbasi)." The petitioner submitted its proposed building plan for raising construction for ground plus nine floors to respondent No,1 for approval. The plan was approved by respondent No,1 but in the approval letter dated 21-8-1998 it was mentioned that construction beyond ground plus one flour should not be raised unless N.O.C. Was issued by the respondent No,2. The petitioner reiterated its position that this condition of obtaining another N.O.C. For construction beyond first floor was not valid and also started raising construction and completed the basement, plus ground plus mezzanine and the 1st floors in the form of a structure by spending about Rs,150 million. It is alleged that while the construction was in full progress, respondent No,1 without any notice intervened and forcibly stopped the work and some portion of the structure was also demolished. The petitioner approached the respondent No,1, to find further details and reasons for its alleged illegal action but no satisfactory reply was given. The apprehension of the petitioner is that if the existing construction is further demolished or damaged by the respondent No,1 and/or the construction is not allowed to be resumed the project will be totally ruined and the bank which has advanced the finance facility to the petitioner is also not inclined to re-schedule the loan unless the construction is restarted. It was also disclosed that in October, 1998 the respondent No,2 permitted construction of a building known as I.B.M. Towers up to 12th floor on a Commercial Plot bearing No,ST-8 which is near to the building site in question on the Main Shahrah-e-Faisal. The petitioner has filed list of nine buildings (under construction/constructed) including Sea Breeze and Ceasar's Towers (16 stories each) on Main Shahrah-e-Faisal between Aisha Bawani School and Kashif Centre in vicinity of the plot in question. In order to save it from further adverse action the petitioner filed Suit No,395 of 1999 and obtained an interim stay order restraining the respondent No,1 from interfering with the construction work.
5. This suit is still pending. It will also be relevant to reproduce the further development as mentioned in paras. 12 and 13 of the petition which are reproduced hereinbelow:-- "12. The respondent No,1 which is defendant No,1 in that suit filed counter-affidavit to the aforesaid application of the petitioner and also produced with it a copy of the letter dated 3-11-1998 of respondent No,2 showing that request of the petitioner 'to reconsider the permission from Ground + 1 to -9 has not been acceded to'. This was startling disclosure as this letter was never sent to or received by the petitioner. According to respondent No,1 since the petitioner did not have N.O.C.
6. From respondent No,2, they are not entitled to construct beyond ground plus one floor and that they had to stop construction under the order of respondent No,2. A copy of letter dated 3-11-1998 is filed herewith as Annexure 'A'.
13. That the petitioner submits that respondent No,2 has already given its N.O.C. To construct the plot in question and subsequent cancellation of the N.O.C. Or refusal to give the N.O.C. By respondent No,2 is illegal, void and mala fide inter alia on the following grounds."
7. Notices of this petition were served on the respondents as well as learned Dy. A.-G. We have heard the learned counsel for the petitioner as well as Mr. Naim-ur-Rehman, the learned Dy. A.-G. Neither any intimation was sent by the respondents Nos.1 and 3 nor they appear to contest the matter. The respondent No,2, however, deputed a senior clerk Fateh Jung who made oral statement that the matter has been referred to the learned Attorney-General for opinion but he has neither produced any authority letter or written request for adjournment nor any law officer was deputed to place the view-point of the respondent No,2. The only point involved in this petition is as to whether any NOC from the respondent No,2 is required or could be a condition precedent for constructing a building duly approved by the respondent No,1. This petition is admitted and arguments heard. The learned counsel for the petitioner submitted that:--
(a) The Cantonment Board is the competent Authority to sanction a building plan and that it was not permissible to put the condition of N.O.C. From the Station Headquarters;
(b) there is no provision in the Cantonments Act for 'No-Objection' from the Station Headquarters;
(c) assuming for the sake of argument, if such N.O.C. Necessary it was already there in terms of its letters dated 18-9-1995 and 21-5-1996 and no further N.O.C. Was required;
(d) that once N.O.C. Was given by the Station Headquarters, the same could neither be withdrawn nor the Station Headquarters could interfere with the construction of the subject plot;
(e) the conduct of respondents is discriminatory towards the petitioner inasmuch as they have permitted construction of various multi-storied buildings in the area where the plot in dispute is situate.
8. We have perused the Cantonments Act (II of 1924) and enquired from the learned Deputy Attorney-General as to whether the respondent No,1 while approving the plan for construction could have imposed a condition for obtaining a No-Objection Certificate from the respondent 'No,2 i,e, the Station Headquarters Karachi Cantonment. The learned Dy. A.-G. Frankly conceded that nothing in law backs the impugned condition but he casually remarked, "perhaps the apprehension of the respondent No,2 is regarding its security". As observed earlier the respondent No,2 has chosen not to come forward to contest the petition. Even otherwise once the plan was approved according to law the presumption and logical conclusion would be that the respondent No,1 must have done so by keeping in view the ground realities and the relevant legal provision.
9. Hence the remarks of the learned Dy. A.-G. Require no further comments. There is nothing in law which clothes the respondent No,1 with powers to impose a condition to obtain a No-Objection Certificate from the respondent No,2 in relation to construction. In this respect it would not be out of place to seek support from Amanullah Khan v. Federal Government of Pakistan PLD 1990 SC 1092 wherein a Full Bench of the Hon'ble Supreme Court was pleased to observe that the imposition of conditions which have no statutory backing is completely without jurisdiction, unlawful and mala fide. The respondent No,1 is functioning as a statutory authority and in approving plans and imposing conditions therein had exercised a discretion. However, it is now settled law that any discretion which vests in an executive functionary has to be exercised reasonably, justly, fairly and not arbitrarily, unreasonably and in a manner totally extraneous to law and the statute (see Chairman, RTA v. Pak Mutual Insurance Co. PLD 1991 SC 14). In our view the very imposition of the impugned condition to see a No-Objection Certificate from Station Headquarters, Karachi Cantonment for construction beyond the first floor is totally extraneous to law, unlawful and completely without jurisdiction. The same cannot be sustained and is accordingly struck down. It is needless to mention here that the failure of a statutory functionary to accord approval and No- Objection Certificate once the citizen complies with all the formalities and requirements of law is also mala fide and violates the settled law pertaining to structuring the discretion. The law pertaining to discretion as settled by our Hon'ble Supreme Court is that once there is more than one possible manner to take an action, an exercise of lawful discretion would mean that the particular permissible option is exercised which is in the best interest of the person who is seeking the State functionary to exercise the discretion (see Federation of Pakistan v. Ibrahim Textile Mills Ltd. 1992 SCM R 1898). There is another aspect of the matter. The respondents have permitted construction of a building with ground plus 12 floors in October, 1998 on a plot in the immediate vicinity of the plot in question.
10. The failure to accord the E permission up to 9 floors to the petitioner is patently discriminatory and repugnant to the concept of equality before law which is the hallmark of our legal system. It also violates Article 25 of the Constitution. In this respect we have been able to lay our hands on Saleem Akhtar Rajput v. K.M.C.- 1994 CLC 211 wherein a Division Bench of this Court declared the denial of approval of six additional floors to the petitioner by the K.M.C. As discriminatory and violative of Article 25 since in the immediate vicinity other builders had been granted permission to construct additional floors. The judgment of this Court has been challenged in the Hon'ble Supreme Court which has been pleased to grant leave to appeal while suspending operation of the impugned judgment. The leave granting order is reported as K.B.C.A. v. Saleem Akhtar Rajput 1993 SCM R 1451.
11. In the leave granting order the reasoning adopted by the Hon'ble Supreme Court is that the application of Article 25 is not based upon any mathematical calculation and scientific exaction. It was suggested therein that the facts and circumstances of each plot in light of environmental hazards and availability of civic and easementary amenities varied at different period of times.
12. These two judgments would have no application in the case since it was the competent Authority which had granted the approval of the plan whose failure to grant additional floors were challenged whereas in the present case the competent Authority i,e, the respondent No,1 has though approved the plan yet imposed a condition therein which is completely extraneous to the statute. Accordingly, the controversy in the Salem Akhtar Rajput litigation is quite distinguishable to the matter at hand. The impugned condition also operates discriminatingly in the present case, thus violating Article 25 of the Constitution.
13. The petition is accordingly allowed and it is declared that the condition to obtain a No-Objection Certificate from the respondent No,2 for construction beyond the first floor is redundant, without jurisdiction, unlawful and is struck down. The Station Headquarters (respondent No,2) having already conceded (vide letter dated January 8, 1998 (supra)) the right of the owner to raise construction on the plot in question is stopped from taking inconsistent stand. The petitioner has vested right to construct the building on the plot in question according to law and any interference by respondent No,2 with the on-going construction of the petitioner is illegal and detrimental to the right in property which is prohibited under Articles 4 and 25 of our Constitution. The petitioner may carry on construction as per approved plan, without any obstruction or further approval from the respondents. However, the construction should be in terms of the operative bye-laws.
14. Miscellaneous Application No,2106 of 1999 also stands disposed of. There shall, however, be no order as to cost.