ORDER SHEET

HIGH COURT OF SINDH, KARACHI

C.P. NO. D-216/2009

Date Order with signature of Judge

__________________________________________________

1. For hearing of Misc.43737/12

2. For order on Misc. 43738/12

3. For katcha peshi.

----

03-04-2013

Mr. Khawaja Shamsul Islam, Advocate for petitioner

Mr. Khursheed Javed, Advocate alongwith Muhammad Tariq Khan, DDO (Land)

Ms. Iqra Saleem, Advocate for A.G. Sindh.

Mr. Ali Azad Saleem, Advocate.

The case of the petitioners is that they are owners of Plot No.15 at CL-7, Civil Lines, measuring 4785 square yards said to have been purchased in the year 1996 from Syed Taj and Syed Khair Muhammad through registered Sale Deed. On 26.09.2007 office of the Deputy District Officer (land Management-2) Saddar Town, Karachi issued a letter to the petitioner that it has come to his notice that the plot in question has been mutated in their favour as commercial whereas the original lease of the property is not commercial. It was stated in the notice that this act on the part of the owners was concealment of status of the plot in question, therefore, the Mutation is being cancelled. This prompted the petitioners to file the present petition.

2. In the lease it is not mentioned that the plot in question is residential or commercial. It is an admitted position that prior to the construction which is now being raised there was a bungalow over the plot in question. Counsel for the petitioner contended that sometime in the year 1984 it was decided by the Government of Sindh, Land Utilization Department that where lease itself does not contain a stipulation that conversion charges are required to be paid in case the property is put to commercial use then the lessee of such property can use it for commercial purposes as well without payment of conversion charges. It was contended by petitioner’s counsel that on the basis of such policy another plot in the vicinity i.e. Plot No. CL-5/3, Civil Lines, was allowed to be converted for residential to commercial use and this policy decision is reflected from the letter issued by the Assistant Commissioner(South) Karachi on 18.02.1984. Counsel for the petitioner further contended that on the basis of such policy decision several plots in Civil Lines were allowed to be utilized for commercial purposes without payment of conversion charges. He stated that in these circumstances the impugned letter is to be cancelled. In support of his contentions, he relied upon the cases reported in PLD 1989 Karachi 85, PLD 1998 Karachi 37, PLD 1983 Karachi 11, PLD 2012 SC 923 and 2006 YLR 2537. He further contended that mutation could not have been cancelled summarily without filing appropriate suit in accordance with law.

3. In rebuttal, counsel for Karachi Metropolitan Corporation(KMC) contended that the letter dated 18.02.1984 which was relied upon by the petitioners’ counsel was issued by the functionaries of the Government of Sindh and not by KMC and Government of Sindh is not the lessor but it is the KMC. He stated that Plot No. CL-6 which was being used as residential was allowed to be converted to commercial use after permission was granted by KMC and that too on payment of conversion charges of about Rs.50 million.

4. Counsel for KBCA contended that the plans that were submitted for approval were supported by documents and in none of the documents it is mentioned that the plot was commercial. He stated that the apartments which are being constructed on the plot in question are residential apartments and not commercial.

5. In rebuttal counsel for the petitioners contended that the Sale Deed was registered on which the petitioners paid stamp duty at commercial rate and other charges of KMC were also paid. He relied upon Karachi Building Town Planning Regulation 2002, wherein residential plot has been defined as bungalow, town, house, flat etc and, therefore, even where a plot is residential it can be used for constructing apartments and there is no show room or offices in the building which can show that any part of the building would be put to commercial use.

6. It is an admitted position that Plots No. CL-7 to 15 were bungalows but some of them have been put to commercial use. In the present case also on Plot No. 15 was a bungalow which has been demolished and now a multi storied building is being raised.

7. Counsel for the petitioner has relied upon several judgments, but specifically relied upon the judgment reported in PLD 1983 Kar. 11 wherein it was held that the lessee or sub-lessee with the previous consent of KMC in writing can convert the plot to uses other than residential and can also construct on more than 1/3^rd area of the plot and on the basis of such consent. In the present case the property was allowed to be used as commercial by the Government of Sindh without any permission for conversion of the plot from KMC and payment of conversion charges. We are of the view that if residential properties are allowed to be used for multistoried buildings without permission from the lessor and payment of conversion charges and following requisite procedures that are required for conversion of residential plot into commercial then it would lead to disastrous consequences. Mere fact that lease of residential property does not provide that for putting a residential property into commercial use conversion charges are to be paid does not mean that no permission is required. We are not concerned whether any other residential property is allowed to be used as commercial without payment of conversion charges as we have to decide a lis that is before us and examine its legality or otherwise. In this case it is evident that multi storied building has been raised on the basis of a policy of Government of Sindh which is not the lessor as the actual lessor is KMC. Hence we dismiss this petition. At this stage, counsel for the KMC states that in case the petitioners are prepared to pay conversion charges conversion of the plot can be considered. It is for the petitioners to apply for conversion and then law will take its course.

Petition dismissed.

JUDGE

sharif