HAMID ALI MIRZA, J.--- This civil petition for leave to appeal is directed against the judgment, dated 12.4.200 of a learned Division Bench of Sindh High Court at Karachi in Constitutional Petition No. D- 1939 of 1998 (Syed A.I Asghar and 3 others v. The Creators Builders and 3 others) whereby the Constitutional petition filed by the petitioners was dismissed, hence this petition for leave to appeal.
2. The brief facts of the case are that the petitioners are the owners of residential premises bearing Nos. 153-C and 153-D situated in Block-2 of PECHS when Plots. Nos.. 154-A, 154-B, 154C and 154-D, hereinafter' referred to as said Plots, are situated opposite to the residences of the petitioners with 20 feet wide lane between the residences of the petitioners and the said plots. Respondent No. 1, the Construction Company is constructing a high-rise building on said plots in the name and style of 'Anum Gems and Jewellers Mall (Anum Livina)', despite the protests of the petitioners are raising a commercial building in the residential area. Respondent No. 1 has obtained approvals and NOCs from the concerned agencies including KDA, KBCA and PECHS, which the petitioners claim to have been obtained unlawfully. It is also the case of the petitioners that respondents 2 to 4 have Unlawfully allowed conversion of the residential plots into commercial. In the circumstances, the petitioners filed Constitutional petition in the High Court and prayed for the following reliefs:- "(a) Direct the respondents Nos. 2 and 4 to cancel the NOCs and approvals for construction - of a high-rise building over Plots Nos. 154-A, 154-8, 154-C and 154-D off Allama lqbal Road situated in Block-2, P.E.C.H.S Karachi being a residential area and further direct the said respondents to take action as warranted by law ,against the respondent No. 1 for violating the mandate of allotment/lease of aforesaid plots.
(b) Permanent prohibitory injunction against the respondent No. 1 restraining them from raising any construction higher than ground plus one."
3. The learned Division Bench of the High Court, after perusal of the material available on record and after hearing the learned counsel for the parties, dismissed the petition with following observations:- "It is an admitted position that respondent No. 1's one plot has already been commercialised conversion and amalgamation the respondent No. 1 had invited objections in newspapers. Even the Environmental and Utilities Department of K.B.C.A. Has granted the necessary approval on 22.11.1997.
The contention of Mr. K.M. Nadeem that due to construction the Environmental problems would arise has no force. The petitioners have filed this petition on 10.12.1998 after a lapse of about one year which delay has also not been satisfactorily explained by them.
For the foregoing reasons, we find no substance in this petition which is accordingly dismissed. The respondent No. 1 shall not raise any construction in violation of the approved plan".
4. We have heard the learned counsel for the parties and perused the record.
5. The contention of the learned counsel for the petitioners is that K.B.C.A. Had no power to change the use of land and that it was only K.D.A. Which, under Article 40 of K.D.A. Order 5 of 1957, could grant permission for change in use of land for any purpose other than laid in the Zonal Plan Scheme notified under Clause (3) of Article 40 of the Order as provided under sub-clause (4) of Article 40 of said Order. He further submitted that under Section 6(3) of the Sindh Buildings Control Ordinance, 1979, use of the building could be changed for the purpose other than for which its plans were approved by the authority under the said Ordinance, which permission could be granted only after the building is raised, but before the building is raised, it would be K.D.A. Under Article 40 to grant such permission for change in use of plot. He, further submitted that Regulation 4 of Karachi Building and Town Planning Regulations (Part II) at page 51, has not been followed by K.B.C.A. Whereunder no residential plot was to be converted into any other use except with the approval of M.P. And C.E., (Authority under Sindh Buildings Control Ordinance, 1979) after the recommendations of the concerned Authority. The 'concerned Authority has been defined in Schedule 'A' of the said Regulation, Part II, at page 33. He finally submitted that NOC under the Environmental Pollution Act, 1997 or Ordinance 1983 was not obtained by the respondents. He has placed reliance upon Ardeshir Cowasjee v. Muhammad Naqi Nawab (PLD 1993 Karachi 639), Abdul Razak v. Karachi Building Control Authority (PLD 1994 SC 512), Hashmatullah v. Karachi Municipal Corporation (PLD 1971 Karachi 514) and Hakim All v. Muhammad Salem (1992 SCMR 46).
6. The learned counsel for the respondent in reply has submitted that the word "Primarily" used in sub-clause (1) of Article 40 of K.D.A. Order, 1957 cannot be construed to be absolute, but the change in the use could be made in the change circumstances in future. He also referred to sub-clause (3) of Article 36 of the said Order. He also submitted that the petitioners have placed reliance upon Article 40 of the said Order but have not produced Zonal Plan as stated in the said Order to show that the land in dispute was to be used only for residential purposes, therefore, it cannot be said that the plots in dispute were residential. He also submitted that Section 2 of the Sindh.Buildings Control Ordinance, 1979 provides that nothing contained in any other law for the time being in force shall apply to any matter regulated by the said Ordinance, therefore, according to him whatever material is required under the said Ordinance for obtaining approval for raising building was submitted to the concerned authority before building plan was approved consequently there was nothing illegal in granting approval of building plan. The learned counsel submitted that the respondents have obtained all requisite approval, NOCs from the concerned authorities for raising multi-stroyed building. He also submitted that paragraph 7 of the agreement of lease, Form ' B', dated 30.8.1989 executed by Pakistan Employees' Co-operative Housing Society Limited provided that plot and the building or erection built or to be guilt thereon shall be used for residential purposes only, and shall not be diverted to other use without the express consent. In writing of the lessor and in case of breach of the said convenient, the lessor shall be entitled to forfeit the lease and to resume the plot. He submitted that the lessor in case of plots in question being the President of Pakistan, which expression included his successor-in-office and assigns, and such permission of change in use having been obtained from the Federal Government was sufficient compliance under the law, consequently, there was no need to obtain any permission from any authority under the K.D.A. Order, 1957. He submitted that all the three authorities have sanctioned the building plan and ranted necessary permission for the change in use of the plots and it was no body's case that NOCs and approvals required were not obtained by the respondents. He also submitted that public notices were published in Daily News, dated 12th June, 1997 and daily Jasarat (Urdu), dated 12th June, 1997, therefore, the requirements of Rule 4(c) of Karachi Building and town Planning Regulations, Part II, page 51, for change of land use was made and such final NOC was ,also issued. He also submitted that K.B.C.A. An authority for Master Plan environment control has given the required permission, therefore, the compliance of the law was made. SO far the grant of permission by the Federal Government during the pendency of the petition, he submitted that provisions of Article 204(2)(c) of the Constitution would not be attracted as the Court was quite competent to take into consideration the changed circumstances of the matter. He placed reliance upon Amina Begum v. Ghulam Gastagir (PLD 1978 SC 220 at 226), Raja Muhammad v. Muhammad Zareen (1980 SCMR 241), Ibrahim v. Rehmatuallah (1985 SCMR 241) and Federation of Pakistan v. Aftab Ahmed Khan Sherpo (PLD 1992 SC 723). He further submitted that all officials acts are presumed to have been regularly performed in accordance with relevant laws for which he referred to Article 129 of 'Qanun-e-Shahadat Order. He also submitted that under Section 8(2) of the Pakistan Environmental Protection Agency Ordinance, 1983 "every proponent of a project the construction or completion of which is likely to adversely effect the environment shall file with the Agency, at the time of planning the project, a detailed environmental impact statement including information" but there was nothing in the said law as to who was to determine whether the construction raised was likely to adversely affect the environment, whereas under Section 12 of Pakistan Environmental Protection Act, 1997, Federal Agency established under Section 5 of the said Act or any Government Agency was to issue approval that the project was not likely to cause an adverse Environmental effect. He also contended that in the instant case no approval was also required under the said Act, 197 as the instant project pertained to prior period and for the environmental protection it was then K.B.C.A. Which was competent authority to grant such approval. The learned counsel placed reliance upon Ardeshir Cowasjee v. Government of Sindh (1998 MLD 1219 at 1231) and ,Excell Builders v. Ardeshir Cowasjee (1999 SCMR 2098).
7. The learned counsel for the petitioners has failed to explain as to why in the instant case when the President of Pakistan was the lessor, permission for change in use should be obtained from the authority as provided under clause (4) of Article 40 of K.D.A. Order (5 of 1957). The covenants of lease in respect of the plots specifically mentioned that in case change in use of the plots consent was to be obtained from the lessor, who leased out the plots in favour of the respondents, would be competent to give such permission. The respondents have admittedly obtained NOC from the Government of Pakistan, Ministry of Housing and Works, therefore, in the instant case it could not be said that respondents have not obtained permission from the competent authority for the change in use of the plots in question. So far Section 6(3) of Sindh Buildings Control Ordinance, 1979, would not be applicable as in the instant case permission for change in use of building was not required but change in use of plots was required which permission was obtained by the respondents from the concerned authority, so also the contention? Of the learned counsel for the petitioners that there has been on-compliance of Regulation 4 of Karachi Buildings Control Authority Regulations has no merit and substance. So far the approval under the Pakistan Environmental Pollution Act, 1997 or under the Pakistan Environmental protection Ordinance, 1983, it would appear that the project of the respondents pertained to the period prior to the enforcement .Of. Environmental Pollution Act, 1997, therefore, said provisions of law would not be attracted. So far the NOC under the Pakistan Environmental Protection Ordinance, 1983, subsection (2) of Section 8 of the said Ordinance does not state that proponent of the project shall not commence construction or operation unless approval is obtained from the Federal Agency as has been provided under Section 12(1) of Environmental Pollution Act, 1997. Ordinance 1983 only provided that the proponent would file information stated in Section 8(2) to the Agency who would approve or recommend environmental impact to the Federal Government. Nothing is said by either of the party whether information required was filed or not and whether the project was approved or it was recommended to Federal Government. There was no bar to the raising of building under the Ordinance, 1983 as has been provided in the Act, 1997. However, the respondents have obtained NOC from K.B.C.A. As an authority for master plan .For Environmental control therefore, compliance of law was made. So far the contention of the learned counsel for the petitioners that the respondents should be punished as they have obtained permission for the change in use of plots from the Government of Pakistan, Ministry of Housing and Woks during the pendency of the petition before the High Court, which act contravened Article 204(2)(c) of the Constitution of Islamic Republic of Pakistan. We cannot decide in this petition whether the act of grant permission in respect of change in use of plots by Federal Government 'prejudiced the determination of matter/petition before the learned Division Bench of High Court as it would require investigation, enquiry and evidence so as to arrive at the conclusion whether there has ben contravention of Article 204(2)(c) of the Constitution by the respondents but the learned Members of the Division Bench of the High Court were justified. In considering the factum of grant of permission for change in use of plots for the benefits of the people therefore, it could not be said that there is absolute bar to the grant of such permission. In the instant case, such permission has been granted by the Government of Pakistan, Ministry of Housing and Works and it has not been shown that such permission was not in the benefit of the people. The counsel for the petitioners has not brought evidence to show that the required approval and NOCs were not duly obtained by the respondents.
Mere fact that it has been alleged by the petitioners that approval and NOC were unlawfully obtained would not make the same to be unlawful or without jurisdiction in absence of legal and valid material on record considering that under Article 129 of the Qanun-e-Shahadat the legal presumption would be that the judicial and official acts have been regularly performed. The respondents have filed a number of documents; ' in the supplementary paper book which would show that the respondents have got the plots commercialized from the concerned authorities on payment of required fees and K.B.C.A. Also granted approval for raising building after getting the required public notices published in daily newspapers and the respondents also obtained NOCs from the civic agencies for the supply of amenities in respect of the building to be raised in accordance with the approved plan.
8. In the circumstances, we find no merit in the contentions of the learned counsel for the petitioners, consequently leave to appeal is refused and the petition is dismissed.