' SABIHUDDIN AHMAD, J.---The petitioners are owners of three plots located in Block No,8, Khayaban-e-lqbal (main Clifton Road) KDA Scheme No,5, Clifton, Karachi. These three plots were part of a larger plot which was initially allotted to the predecessor of the petitioners for residential purposes. However, in or about 1980 the plots on main Clifton Road were commercialized vide Resolution of the Governing Body of the respondent No,220 and permission to commercialize several plots including those adjacent to the petitioners' plot was granted by the respondent No,2.
However, when the petitioners applied for commercialization of the plot their request was rejected by the respondent No,2 on the ground that the respondent No,1 had by a Notification dated 20-7- 1998, imposed a ban on commercialization of plots other than those located on six specified roads.
2. Mr. Abid S. Zuberi, learned counsel for the petitioners argued that the impugned action was patently discriminatory inasmuch as all the plots in the vicinity of those belonging to the petitioners, have been commercialized, the petitioners' plot remain solitary residential plot, though it has become incapable of being used for residential purposes on account of multistoried commercial, building having been raised all around the area.
3. The basic facts urged by the petitioners are not disputed by Syed Jamil Ahmad for respondent No,2. Nevertheless the only defence offered is that once the respondent No,1 i,e,. The Government of Sindh had imposed ban on commercialization of plots in the area as well as regularization of multistoried buildings, the respondent No,2 had no option but to refuse commercialization.
4. In response to the above Mr. Abid S. Zuberi argued that the Notification dated 20-7-1998, was not issued under the authority of any law and was therefore, void and inoperative, as such the respondent No,2 were under no obligation to follow a ban unlawfully imposed by the Government.
5. We requested Mr. Suleman Habibullah, learned A.A.-G. To assist us on the question whether the kind of ban contemplated in the aforesaid Notification could be imposed, and if so under what authority of law. Learned A.A.-G. Argued that the notification in question only, tends to explain the restrictions contained in the Sindh Buildings Control Ordinance. We are inclined to agree with him, to that extent, inasmuch as, the Ordinance in question and the Regulations made thereunder, do contemplate a discretion between violations which can be regularized and those which cannot.
Apparently the regulations do not permit raising of additional floors in violation of an approved plan or change of user of a plot without following a prescribed procedure.
6. Nevertheless, Mr. Abid S. Zuberi, learned counsel for the petitioner pointed out that the area, wherein the plot is located now falls under the territorial limits of Clifton Cantonment Board and as such the provisions of the Sindh Buildings Control Ordinance, will not apply. This fact is not disputed by Syed Jameel Ahmed, though learned A.A.-G. Attempted to argue that the Ordinance would continue to apply in Cantonment area as well. However, it may be observed that the controversy stands at rest by a Division Bench judgment of this Court in Zeshan Builders v. Karachi Buildings Control Authority (1992 M LD 2259). Indeed this judgment supports the petitioners' point of view and respectfully following the same we are constrained to observe that the restrictions contained in the Sindh Building Control Ordinance or Town Planning - Regulation, would not be applicable in the instant case; The fact, nevertheless, remains that the petitioners would still be bound by any restriction as to land user contained in the Cantonment Acts or Rules made thereunder.
Accordingly the petition is allowed to the extent that the impugned order is set aside and the respondent No,2 is directed to decide the petitioners' application for commercialization notwithstanding the Notification in question and within a period of two months.