O R D E R S H E E T

O R D E R S H E E T

IN THE HIGH COURT OF SINDH AT KARACHI

Const. Petition No.D-2924 of 2011

ORDER WITH THE SIGNATURE OF THE JUDGE

1. For orders on Nazir’s Report dt. 12.9.2011

2. For Katcha Peshi.

3. For hearing of Misc. No.13445/2011

Date of hearing : 20.10.2011

Date of order : 20.10.2011

Mr. M. Anwar Tariq, Advocate for the Petitioners

Mr. Abid S. Zuberi, Advocate for Respondent No.1

Mr.Shahid Jamil, Advocate for KBCA

Mr. Sher Muhammad K. Shaikh, Addl.A.G.

-------

O R D E R

Aqeel Ahmed Abbasi, J:- Through instant petition the petitioners have sought declaration to the effect that the construction of high-rise building on Plot No.26, FT-3, Frere Town Quarters, Karachi, project known as “Zam Zam Residency” is illegal, ultra-vires and unauthorized for being raised in breach and violation of Section 12 of Pakistan Environmental Protection Act, 1997.

2. Brief facts leading to filing of the instant petition as stated by the petitioners are that the petitioners are residents of the vicinity wherein project known as “Zam Zam Residency” has been launched by the respondent No.1 on Plot No.26, Sheet No.FT-3, admeasuring 2960.60 sq. yards in Frere Town Quarters, Karachi. It is stated that the proposed project is a multi-storey building, which is being raised on the basis of purported approval of basement plus ground plus eight upper floors which would consist of many units whereas the said project is abutting road which is hardly about 20 feet in width on which road traffic jam is frequent. The infrastructure vis-à-vis utilities are old and dilapidated and even the sewerage system remains clogged. It has been further stated that the erection of such project will adversely effect the environment, whereas no approval has been obtained from the Pakistan Environmental Agency in terms of Section 12 of Pakistan Environmental Protection Act, 1997, which according to the petitioners is a pre-requisite in case of construction of a multi-storey building.

3. It is inter alia contended by the learned counsel for the petitioners that the proposed project which is a multi-storey building consisting of ground plus eight floors is being raised without obtaining NOC/approval under Section 12 of Pakistan Environmental Protection Act, 1997, whereas the approval and the NOC granted by the Building Control Authority in the absence of such approval from the Pakistan Environmental Protection Agency is violative of law, rules and regulations. However, during the course of arguments, learned counsel for the petitioners conceded that the project is being raised after obtaining all the necessary approvals and NOCs from Karachi Building Control Authority in accordance with Town Planning Rules and Regulations, however, he has submitted that in the absence of NOC and approval in terms of Section 12 of Pakistan Environmental Protection Act, 1997, the multi-storey project cannot be constructed. Learned counsel has readout the provision of Section 12 and relied upon the case of 2010 YLR 2624 in support of his contention.

4. Conversely, the learned counsel for respondent No.1 has vehemently opposed the contention of the learned counsel for the petitioners and referred to the counter-affidavit filed by respondent No.1 as well as by the respondents No.2 and 3 wherein all the relevant documents including the title documents, approved architectural and building plans, paid challans of betterment charges and building plans have been attached to show that the housing project on the subject plot is being constructed strictly in accordance with law, whereas, all the legal requirements have duly been complied with. It may be observed that during the course of arguments, such fact appears to have been conceded by the learned counsel for the petitioners. As regards objection relating to obtaining approval/NOC in terms of Section 12 of Pakistan Environmental Protection Act, 1997, learned counsel for the respondents has submitted that such objection besides being malafide is misconceived as no approval/NOC is required in the case of residential housing project being constructed by the respondent. Per learned counsel, Karachi Building Town Planning Regulations 2002, there is no requirement of obtaining NOC from Environmental Protection Agency. It has been further argued that the petitioners have not been able to point out any adverse environmental effect which may be caused due to construction of residential housing project, whereas such project is being constructed in the area which is surrounded by large number of high-rise residential buildings including the building of petitioner No.1 known as Ideal Homes which consists of ground plus 6 floors. Learned counsel for the respondents submitted that instant petition besides being not maintainable is tainted with malafides as the petitioner No.2 had earlier filed suit seeking declaration and permanent injunction against respondent No.1, however, the same was withdrawn subsequently. Per learned counsel, instant petition is continuation of the harassment, which is being caused by the petitioners to extract illegal gain, whereas a complaint against the conduct of petitioner No.1 has also been lodged with Chairman (ABAD), copy of which was also sent to Chief Minister Sindh and Governor of Sindh. Learned Counsel has further referred to list of about 32 multi-storey buildings already constructed in the same vicinity and submitted that petitioners did not object to construction of any other high rise building except the one being constructed by the respondents, which reflects upon the malafides on the part of petitioner.

In support of his contention, learned counsel has placed reliance in the case of Shamsul Arfin and others v. Karachi Building Control Authority and others PLD 2007 Karachi 498. As regards case law relied upon by the learned counsel for the petitioners, the learned counsel for the respondents submitted that the same is distinguishable and not attracted to the facts and circumstances of this case, whereas per learned counsel for the respondents, the case of Shamsul Arfin is fully attracted and applicable to the facts of this case as the same pertains to construction of a residential building on the plot which was meant for the construction of residential housing project, whereas, in the case relied upon by the counsel of the petitioners, there was change of land use from residential to commercial and a commercial building had been constructed on a residential plot.

5. From perusal of the comments filed by the official respondent No.2 & 3 as well as the documents submitted by the counsel for the respondent No.1, relating to the title, approvals/NOCs of the building plan and payment of challans by the respondents, it is seen that while seeking approval of the proposed construction of the residential Housing project on the subject land, all the codal formalities as required under the building laws, rules and regulations i.e. Karachi Building & Town Planning Regulation, 2002, appears to have duly been complied with by the respondent No.1 which fact has also been conceded by the counsel for the petitioners during the course of arguments. The only controversy which requires resolution by this Court relates to the objection regarding obtaining approval/NOC in terms of Section 12 of Pakistan Environmental Protection Act, 1997.

6. Perusal of the provisions of Section 12 reveals, that initial environmental examination and environmental impact assessment is required where the construction or operation of a project is likely to cause an adverse environmental effect. The term adverse environmental effect has been defined under section 2(i), which reads as follows:

“(i) “adverse environmental effect” means impairment of, or damage to, the environment and includes-

(a) impairment of, or damage to, human health and safety or to biodiversity or property;

(b) pollution; and

Similarly, the term environment has been defined under Section 2(x), whereas the term environmental impact assessment has been defined under section 2(xi), which read as follows:

“(x) “environment: means-

(a) air, water and land;

(b) all layers of the atmosphere;

(d) the ecosystem and ecological relationships;

(e) buildings, structures, roads, facilities and works;

(f) all social and economic conditions affecting community life; and

(g) the inter-relationship between any of the factors specified in sub-clauses (a) to (f);

(xi) “environmental impact assessment” means an environmental study comprising collection of data, prediction of qualitative and quantitative impacts, comparison of alternatives, evaluation of preventive, mitigatory and compensatory measures, formulation of environmental management and training plans and monitoring arrangements, and framing of recommendations and such other components as may be prescribed.”

7. Similar controversy came up for resolution before this Court, in the case of Shamsul Arfin v. Karachi Building Control Authority PLD 2007 Karachi 489. The Division Bench comprising of Mr. Justice Sarmad Jalal Osmany and one of us namely (Mr. Justice Faisal Arab), who has authored the cited Judgment, while dealing with similar situation, has held as under:

“It was argued by petitioner’s counsel that the construction of multi-storey building would be an environmental hazard and therefore prior to approval of building plans, permission ought to have been sought from environmental protection agency under section 12 of Environment Protection Ordinance, 2002. Mr. Mushtaq A. Memon on the other hand submitted that there is no legal requirement to first obtain permission from Environmental Protection Agency before approval of the building plans. In our view the petitioner’s argument that permission from Environment Protection Agency is to be first sought has no force for the reason that firstly it is a case of construction of a residential building. Secondly, when the building plans are submitted to KBCA, they are to be vetted by the master Plan and Environmental Control Department also. This takes care of the environmental effect of the building proposed to be constructed. Therefore, the question of first seeking permission for a residential building from Environment Protection Agency does not arise at all.”

8. We are in respectful agreement with the above cited Judgment of the Division Bench of this Court and hold that under the facts and circumstances of this case, where on a residential plot of land a residential housing project, after having complied with all the codal formalities as required under the building laws, rules and regulations, is being constructed in the vicinity of several similar multi-storey buildings, there would be no requirement to seek permission or to obtain the approval/NOC from the Environmental Protection Agency, particularly when Environmental Control department of KBCA has already vetted the building plan which takes care of the environmental effect of the building. Moreover the petitioners have not been able to demonstrate any adverse environmental effect which would occur due to construction of the housing project on the subject land by the respondent No.1.

9. As regard case of Nighat Jamal versus province of Sindh and others 2010 YLR 2624 relied upon by the Counsel for the petitioners is concerned, we have observed that facts of the cited case are distinguishable from the facts of this case. In the cited case, the petitioner challenged the conversion of a residential plot into commercial and construction of multi-storey commercial-cum-residential building in a pure residential area. There were several other violations of the building laws which were alleged in the cited case whereas the commercialization in the pure residential area was also challenged. Re-classification of the land use was also objected by the petitioner of that case and under such circumstances the Division Bench was pleased to observe that in case of re-classification of residential area into commercial area in such manner, there is every likelihood that the same may adversely effect the environment. In the instant case neither there is any re-classification nor there is any change in land use. Accordingly, we are of the view that the reliance placed by the Counsel for the petitioner in the above cited Judgment is misplaced.

10. In view of the hereinabove facts, we do not find any substance in the instant petition, which was dismissed by our short order dated 20.10.2011 and these are the reasons for the same.

JUDGE

Yaseen