2005 C L C 759

[Karachi]
Before Sarmad Jalal Osmany and Amir Hani Muslim, JJ Capt. S.M.
ASLAM and others---Petitioners
versus
KARACHI BUILDING CONTROL AUTHORITY through Chief Executive Nazim-e-
Aala and others---Respondents
Constitutional Petitions Nos.D-771, D-936 and D-1122 of 2004, decided on 5th November,
2004.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Relief, moulding of---Scope---If the
facts pleaded in petition warrant so, in order to meet the ends of justice, High Court has ample
power to alter and/or mould the relief in favour of a petitioner, even if it is not prayed
for.

(b) Karachi Development Authority Order (5 of 1957)---

----Art. 40---Constitution of Pakistan (1973), Art.199---Constitutional petition---
Commercialization of residential plots---Notification was issued by Provincial Government for
commercialization of road on which the disputed plot was located---City District Government
did not approve concept plan submitted by the petitioner on the ground that the plot was not
commercialized by it---Validity---As the road on which the plot was located had been
commercialized by virtue of the Notification under the Zonal Plan Scheme, there was no
question of seeking permission of Karachi Development Authority or City District Government
for commercialization---Once the notification had been issued by the Provincial Government,
the petitioner was not required to seek change of land use as the status of subject plot already
stood changed from residential to that of commercial on the issuance of Notification by
Provincial Government---No permission of Karachi Development Authority was required and
the petitioner was free to construct a commercial building on the plot in dispute subject to
approval of concept plan by City District Government---Petitioner was not required to pay
any commercialization fee---Petition was allowed in circumstances.

(c) General Clauses Act (X of 1897)---

----S. 6---Repeal of statute---Effect---Once vested right has accrued in favour of a party under
a statute, which statute is subsequently repealed, such right cannot be disregarded.
Petitioner in person (in Constitutional Petition No.D-771 of 2004).
Rasheed A. Razvi for Petitioner (in Constitutional Petition No.D-936 of 2004).
 Raja Sikandar Khan Yasir for Petitioners (in Constitutional Petition No.D-1122 of 2004).
Anwer Ali Shah for K.B.C.A.
Ashraf Ali Butt for Cantonment Executive Officer.
Manzoor Ahmed for City District Government.
Ahmed Pirzada, Addl. A.-G., Sindh.
Date of hearing: 5th November, 2004.

JUDGMENT
AMIR HANI MUSLIM, J.--- The facts as they appear from the pleadings of the parties
are that the petitioner claims to be the owner of Plot No.D-5, Block 10-A, Gulshan-e-Iqbal,
admeasuring 1000 square yards, located on Rashid Minhas Road, Karachi. The petitioner
further claims that the entire Rashid Minhas Road has been commercialized and on 5-6-1991,
the petitioner approached the respondent No.1, for commercialization of his plot. According to
the petitioner at the relevant time, the Governing Body of K.D.A., which is predecessor-in-
interest of respondent No.4 vide its Resolution No.220, had fixed the commercialization fee of
a plot in the area at the rate of Rs.300 per square yard. Plot No.D-6, which plot was next to
petitioner’s plot, was also commercialized at the aforesaid rate.
2. After exchange of correspondence between the respondents Nos.1 and 2 with the
petitioner, the petitioner was informed that the power to commercialize a plot rests with the
respondent No.2. The petitioner claims that since his plot was not commercialized by the
authorities, he preferred a Constitution Petition No.D-589 of 1998 in this Court seeking
direction for commercialization of his plot, which petition was disposed of by order, dated 2-
6-2000 directing the respondent No.2 to sanction commercialization.
3. According to the petitioner the respondent No.2 did not accord sanction of
commercialization for want of its authority but however, issued N.O.C. in favour of the
petitioner. The reason assigned by the respondent No.2 for not according sanction for
commercialization of the petitioner’s plot was that the plot of the petitioner was owned by the
K.D.A. and it was the K.D.A. only which had the authority to accord sanction of
commercialization. The respondent No.2, therefore, regretted the approval of the concept plan
of the petitioner, inter alia, on the ground that the area in which the plot of the petitioner was
located though falls within the municipal limits of the respondent No.2 but since the plot was
owned by K.D.A., and unless the K.D.A. confirms the conversion of the plot from residential
to commercial, it could not approve the concept plan, as the proposed construction under the
concept plan was of commercial nature. Subsequently, by letter, dated 27-9-2001, the
petitioner was informed that cases of commercialization of plots were put in abeyance by the
K.D.A. till finalization of its policy. The petitioner was further informed that his case of
commercialization of the plot would be processed as and when the K.D.A. will finalize its
policy on commercialization.
4. The petitioner in these proceedings has impugned the letter, dated 16-3-2003 issued by the
Additional District Officer (S.C.F.), M.P.G.O. City District Government Karachi, in which it
has been stated that the policy for change of land use and master planning 2003 was approved
by the Resolution No.383 on 6-1-2004 and the petitioner was called upon to complete the
requisite formalities. The petitioner was further informed that under the said policy he was
required to make payment at the new rates prescribed under the policy, which rates were on
much higher side than the rates on the day the petitioner had applied for commercialization.
5. The petitioner has submitted that the impugned letter issued by the respondent No.4, which
is successor-in-interest of the K.D.A., was without lawful authority as the petitioner had applied
for commercialization of his plot way back in 1991 and the petitioner cannot be called upon to
pay commercialization fee at exorbitant rates in terms of policy announced by the City District
Government, Karachi.
6. The City District Government, respondent No.4, has filed their counter-affidavit in support
of their policy rebutting the averment made in the petition.
7. We have heard the learned counsel and have perused the record. The plot in question is
located on Rashid Minhas Road. Admittedly the Provincial Government in exercise of powers
under section 40(3) of the K.D.A. Order had issued Notification dated 20-7-1998 by which
plots/ land on six different roads of Karachi were declared commercial, which included
the Rashid Minhas Road on which the petitioners’ plot is located. Under Article 40 of the
K.D.A. Order, the Zonal Plan Scheme is to be prepared which becomes operative after approval
by the Provincial Government and its notification in the official Gazette in terms of
clause (3) of Article 40. Once such Scheme is notified no person can use land for a purpose
other than that laid down in the Scheme unless permitted to do so under clause (4) to Article
40 of the K.D.A. Order. Clause (4) of the Article 40 enables the authority (K.D.A.) to permit
change of use after public hearing and notice to the affected persons in deviation of the Scheme.
The effect of the aforesaid Notification dated 20-7-1998, issued by the Provincial Government
declaring six different roads of Karachi as commercial, was examined by a Division Bench of
this Court in C.P. No.D-1153 of 2003, of which one of us, namely, Amir
Hani Muslim, J., was also a member. The said petition was decided on 9-12-2003, in
which it was held that once the amendment in
the Zonal Plan Scheme was brought in by a Notification under Article 40(3) of the
K.D.A. Order, declaring six roads of Karachi as commercial, there was no necessity to seek
permission of the K.D.A. for the purpose of raising commercial construction on the plots
located on all the six roads as the area notified in the notification in terms of Article
40(3) of the K.D.A. Order would become part of the Zonal Plan Scheme under Article 40(1).
Specific permission of the K.D.A. under Article 40(4) of the K.D.A. Order can only be required
if a person desires to use land for a purpose other than that laid down in the Zonal Plan Scheme.
In other words, permission for K.D.A. would only be required, if the petitioner had applied for
using a residential plot for commercial purpose in a residential area but not when the area itself
has been declared commercial by amending the Zonal Plan Scheme in terms of Article 40(3)
of the K.D.A. Order.
8. Mr. Manzoor Ahmed, learned counsel for the City District Government, Karachi has
argued that the petitioner only has disputed the quantum of rate and therefore, the scope of the
petition cannot be enlarged to cover the issue of amendment in the Zonal Plan Scheme and the
relief in these proceedings could only be confined to the quantum of rates of commercialization.
This submission of the learned counsel ex facie is misconceived inasmuch as this Court has
ample power to alter and or mould the relief in favour of a petitioner, even if it is not prayed
for in order to meet the ends of justice if the facts pleaded in the petition so warrant. Once the
plot of the petitioner, which is admittedly located on Rashid Minhas Road, Karachi, has been
commercialized by virtue of the Notification under the Zonal Plan Scheme, there is no question
of seeking permission of the K.D.A. or the City District Government, which is its successors-
in-interest for commercialization. In this regard, even the contents of the impugned letter issued
by the City District Government were self-speaking, as the words used therein are “policy for
change of land use and master planning 2003”. In the instant case, once the Notification of the
Provincial Government has amended the Zonal Scheme by converting the area into
Commercial Zone, there arises no
occasion for the petitioner to seek change of land use as the status of subject plot
already stood changed from residential to that of commercial on the issuance of said
notification and, therefore, Resolution No.383 dated 6-1-2004 of the City District Government
would not extend to cover the plot of the petitioner, which ex facie would apply to cover the
cases covered under sub-clause (4) of Article 40 of the K.D.A. Order.
9. Mr. Manzoor Ahmed, the learned counsel for the City District Government, Karachi has
further argued that irrespective of the Notification of the Provincial Government, the City
District Government can introduce a policy for commercialization and can charge
commercialization fee by permitting the petitioner to raise construction of commercial nature.
He submitted that since the K.D.A. Order, 1957 has been repealed by the Sindh Local
Government Ordinance, 2001 and the City District Government which is the successor-in-
interest is competent to promulgate the policy of commercialization. He further argued that
right, if any, accrued to the petitioner under the said Notification issued under the provisions
of the repealed K.D.A. Order would go under hibernation on the date of the repeal of the K.D.A.
Order.
10. With profound respect, we are not persuaded by the arguments of the learned counsel for
the respondent No.4. The submissions are ex facie contrary to the language of section 6 of the
General Clause Act. Once a vested right has accrued in favour of a party under a statute, which
statute is subsequently repealed, such right cannot be disregarded. The amendment in Zonal
Plan Scheme, by virtue of a Notification of the Provincial Government, would not bring any
change on the repeal of the K.D.A. Order and the rights accrued thereunder to the owners
having their properties located on six different roads which were declared commercial would
remain intact and such roads and the properties on them would continue to have the status of
commercial premises irrespective of the repeal of the K.D.A. Order. Our aforesaid reasoning
is also covered by another unreported judgment, dated 17-12-2003 passed by a Division Bench
of this Court in C.P. No.D-1215 of 2003, of which one of us, namely Amir Hani Muslim, J.,
was a member.
11. For the aforesaid reasons we are of the view that no permission of the K.D.A. was required
and the petitioner is free to construct a
commercial building on the plot in dispute subject to approval of concept plan by the
respondent No.2. Consequently, in our opinion there would be no question of paying any
commercialization fee etc. These are the reasons for our short order, dated 5-11-2004 for
allowing this petition.
12. While hearing the aforesaid petition, petitions C.Ps. Nos.D-936
of 2004 and 1122 of 2004, which were tagged with the above
petition, were also heard by us as the issues involved in Petition No.D-771 of 2004
were common to the other two petitions. These petitions were also allowed by short orders and
the following are the reasons for the same.
13. In Petition No.D-936 of 2004, the property in dispute is located in Sindhi Muslim Housing
Society, Karachi, which area has also been notified as “commercial area” in terms of the
Notification of the Provincial Government issued on 12-2-1998 and it is located on one of the
six different roads of Karachi, which were declared as commercial roads. Hence, for the reasons
stated in C.P. No.D-771 of 2004, C.P. No.D-936 of 2004 is also allowed by us with the direction
that the petitioner is entitled to raise commercial construction on the said
premises after obtaining approval of his concept plan from the K.B.C.A., without
seeking any sanction for commercialization from the City District Government as the plot in
dispute stood commercialized on the issuance of the Notification referred to hereinabove.
Again in the circumstances there would be no question of payment of commercialization fee.
14. In C.P. NO.D-1122 of 2004, the plot in dispute is located on Shaheed-e-Millat Road and
the grievance of the petitioners is that the City District Government, the respondent No.2,
cannot demand difference of commercial fee at the new rates once the petitioners have paid the
commercialization and town planning charges on 30-8-1984 at the then prevailing rates to the
predecessor-in-interest of City District Government, Karachi.
15. This issue, as we have already observed in our detailed reasoning, was already decided by
the Honourable Supreme Court in an unreported judgment, dated 28-6-2004 in Civil Petition
for Leave to Appeal No.429-K of 2004 (City District Government v. Muhammad Irfan and
others) where their Lordships after discussing at length the contentions of the City District
Government, which is also one of the respondents in these proceedings, have held that the City
District Government can only demand the commercialization fee at the rate
prevailing on the date of application for change of land use and not at any other rate on
the basis of a policy which they have framed subsequently.
16. In terms of the judgment of the Honourable Supreme Court, the demand raised by the City
District Government, through the letter impugned in C.P. No.D-1122 of 2004 is without lawful
authority. The petitioners would be at liberty to approach the K.B.C.A., with the concept plan
for raising commercial construction on the plot in dispute and no further N.O.C. for
commercialization of the plot in dispute is required from the City District Government for the
purpose of seeking approval of building plan from K.B.C.A. as the commercialization fee has
already been paid in 1984.
M.H./S-100/K Petition allowed.