Mr. Justice Aqeel Ahmed Abbasi.
Mr. Justice Muhammad Junaid Ghaffar.
C. P. NO. D-3508 of 2011
SHAHID NABI MALIK …………………………………….. PETITIONER
PROVINCE OF SINDH & OTHERS ……………………… RESPONDENTS
C. P. NO. D-582 of 2012
PRINTEK (PVT) LIMITED …………………………………. PETITIONER
PROVINCE OF SINDH & OTHERS ……………………… RESPONDENTS
Date of hearing: 10.09.2013, 24.09.2013, 24.10.2013, 21.11.2013, 16.12.2013, 23.12.2013, 24.12.2013 & 19.06.2014
Date of judgment: __.07.2014
For Petitioner: Dr. Muhammad Farogh Naseem Advocate in CP No. 3508/2011
For Province of Sindh: Mr. Qazi Bashir AAG
For SBCA: Ms. Rizwana Ismail Advocate in CP No 582/2012 and Mr. Ali Azad Saleem in CP No. 3508/2011
For KMC/CDGK : Mr. Syed Sultan Ahmed Advocate.
For Respondent No. 2: Mr. Rafiq Ahmed Kalwar in CP No. 582/2012
For Respondent No. 4: Mr. Haider Imam Rizvi Advocate and for Petitioner in CP No. 582/2012.
J U D G M E N T
Muhammad Junaid Ghaffar, J:- Through this common Judgment we intend to dispose of the aforesaid petitions bearing No. D-3508/2011 and D-582/2012. The petitioner in C.P. No. D-3508/2011 is respondent No. 2 in C.P. No. D-582/2012, whereas the petitioner in C.P. No. D-582/2012 is respondent No. 4 in C.P. No. D-3508/2011. For ease and convenience, the petitioner in CP No. D-3508/2011 would be referred to as “Petitioner”, whereas Petitioner in CP No D-582/2012 would be referred to as “Respondent” hereinafter. The petitioner in C.P. No. D-3508/2011 has made the following prayers:-
1) That the Honorable High Court may be pleased to declare that the actions of the respondents in attempting to widen the service lane serving the main Shaheed-e-Millat Expressway and the road between Plot No. 13 and Plot No. 5 of Deh Drig Road, Karachi both of which are adjunct to the project “Defence Regency” are malafide, illegal and null and void;
2) That the Honorable High Court may be pleased to restrain the respondents from harassing the petitioner by attempting to unlawfully and malafidely widen the service lane serving the main Shaheed-e-Millat Expressway and the road between Plot No. 13 and Plot No. 5 of Deh Drig Road, Karachi which are adjunct to the project “Defence Regency”;
3) That the Honorable High Court may be pleased to restrain the respondents from any coercive action against the petitioner, including but not limited to preventing the petitioner from constructing on the said project “Defence Regency”;
4) That the Honorable High Court may be pleased to grant any further relief as it may deem appropriate in the circumstances of the case;
5) That the Honorable High Court may be pleased to grant the costs of the petition to the petitioner.”
the facts relevant for the disposal of the instant petitions are that the
petitioner is involved in the business of construction and had initiated a
residential cum commercial project by the name of “Defence Regency” on plot No.
13 Shaheed-e-Millat Expressway, off Korangi Road, Karachi (“Project”).
It is stated that the petitioner had acquired all the requisite permissions for
raising such construction from the respondent No. 2 (“SBCA”) and
respondent No. 3 (“CDGK”) and so also from the Environmental
Agency, Government of Sindh. It is further stated that after the construction work had started in the project and third party interest were also created, a petition bearing No. D-2150/2006 (M/s Printek Private Limited Vs Shahid Nabi Malik & Others) was filed by the respondent in which the respondent had raised various objections on the construction of the said project, specifically the approvals granted by SBCA & CDGK. Subsequently the said petition was disposed of by a Division Bench of this Court vide judgment dated 24.6.2011(“judgment dated 24.06.2011”). However, according to the petitioner, SBCA malafidely and unlawfully demolished, amongst other things, the boundary walls of the project’s main entry gates and various barriers. It is further stated that subsequently CDGK affixed a notice dated 29.6.2011 on a pillar of the said project, wherein it was stated that an inspection of the project was required, purportedly in compliance of the judgment dated 24.6.2011 and in relation to road widening scheme in pursuance of resolution No. 312 dated 15.12.2007 passed by the City Council, Karachi. It is further stated that subsequently on 09.07.2011, another notice was issued by CDGK and the petitioner was asked once again to stop the construction. The petitioner was thereafter compelled to file the instant petition and challenged the impugned action of demolition initiated by SBCA and CDGK, being in violation of the judgment dated 24.06.2011. Thereafter, it came to the knowledge of the petitioner that SBCA & CDGK after conducting meeting on 07.12.2011 had approved the road widening scheme, and the action initiated against the petitioner was on the basis of such decision. It further came to the knowledge of the petitioner, that a Notification dated 03.01.2012 has also been issued by SBCA in respect of said road widening scheme, after which the petitioner filed an application under Order VI Rule 17 CPC (CMA No. 2649/2012) through which the subsequent events arising in the matter were also challenged and the following additional prayers were also made by the petitioner:-
“3-A) Declare the meeting of the respondent No. 3 (MPGO) and other respondents dated 7.12.2011, the letter dated 8.12.2011 forwarding the minutes of the illegal meeting so also Notification dated 03.01.2012 to be completely without jurisdiction, un-constitutional, illegal, malafide, void ab-initio and of no legal effect, while annulling the same.
3-B) Permanently and pending disposal of the main petition suspend the operation of the meeting dated 7.12.2011 the letter dated 8.12.2011 forwarding the minutes of the illegal meeting so also the Notification dated 03.01.2012 while restraining the respondents, their officers and agents from taking any adverse action in pursuance of the Notification dated 03.01.2012.
3-C) Alternatively, hold that the Notification dated 03.01.2012 is neither retroactive nor applicable t the petitioner.”
3. The facts in C.P. No. D-582/2012 are that the respondent who has filed the said petition is a Private Limited Company incorporated with the object of carrying on the business of printing and pre-press support services. The respondent’s office building directly faces the project of the petitioner and the distance of the road in between is only 34 feet. The precise case of the respondent is that, SBCA and CDGK have acted in accordance with the judgment dated 24.6.2011 and therefore the road widening scheme, as well as the amendment carried out through Notification bearing No. Chief Executive/SBCA2012/631 dated 03.01.2012 was correctly and lawfully issued in terms of powers conferred by Section 21-A of the Sindh Building Control Ordinance, 1979 whereby Chapter 16 of the Karachi Building and Town Planning Regulations 2002 (“2002 regulations”) was amended through which the width of the road from 30-40 feet was proposed to be extended to 80 feet being proposal at serial No. 36 which relates to the controversy in the instant matter. The precise case of the respondent is that the road widening is inevitable and must be carried out as it has been approved in the larger interest of the people of the area.
4. Dr. Muhammad Farogh Naseem, learned Counsel appearing on behalf of the petitioner, has contended that the petitioner’s request for amalgamation of Plot No. 12 & 13 was approved and so also the layout / site plan on 21.3.2006 which was subsequently also approved vide letter dated 31.5.2006 by the Town Planning section of KBCA (now SBCA). Learned Counsel further contended that on 18.10.2006 the final approval of the plan was also issued in favor of the petitioner, therefore the proposed road widening scheme notified on 03.01.2012 cannot be made applicable retrospectively on the petitioner’s project in question as the petitioner has acquired a vested right in respect of the said project which is almost complete and third party interests have been created through sale of apartments as well as commercial shops. Learned Counsel further contended that 10 feet area in question reserved for construction of Arcade, is part of the plot of the petitioner on which the said project belonging to the petitioner is being raised and cannot be encroached upon under the garb of road widening scheme, as it can only be acquired under the Land Acquisition Act 1894. Learned Counsel further submitted that for approval of road widening scheme, it is mandatory that a public notice must be issued whereby such proposal has to be brought to the knowledge of the general public for calling of objections, if any, which in the instant case has not been done; hence it violates the fundamental rights of the petitioner including, but not limited to Article 10-A of the Constitution of Islamic Republic of Pakistan. Learned Counsel also referred to Chapter 16-3 of the 2002 Regulations and submitted that only such roads which are included or mentioned in the table can be considered for road widening scheme and not otherwise. Learned Counsel further submitted that the impugned Notification dated 03.01.2012 cannot have any retrospective application on the petitioner’s project. Learned Counsel also submitted that the respondent is acting malafidely as it belongs to a big Media Group, and is exerting undue influence and coercing SBCA and CDGK to take action against the petitioner, and has also played a vital role in getting the impugned Notification dated 03.01.2012 issued against the interest of the petitioner. Learned Counsel also referred to Para 49 of the Judgment dated 24.6.2011 and contended that the controversy in question has already been decided in favor of the petitioner, wherein the learned Division Bench has held that if Arcade is part of the plot and is not to be considered for extension of road, then construction can be allowed. Learned Counsel finally submitted that since the Arcade in question is undisputedly, part of the property on which the project of the petitioner is being constructed, therefore it cannot be considered for the road widening scheme; hence the impugned Notification dated 03.01.2012 cannot be applied against the interest of the petitioner. Learned Counsel in support of his contentions relied upon the case of Commissioner of Sales Tax (West), Karachi V. Messrs Kruddsons Ltd. (PLD 1974 SC 180) and Senior Member BOR and others V. Sardar Bakhsh Bhutta and another (2012 SCMR 864)
5. Mr. Haider Imam Rizvi learned Counsel appearing for respondent contended that the construction of the said project is still incomplete and the petitioner in order to avoid the implementation of the road widening scheme, has started construction on a fast pace on the disputed area reserved for the Arcade. Learned Counsel further submitted that the Notification dated 03.01.2012 can operate retrospectively on the basis of the observations in the judgment dated 24.6.2011. Learned Counsel also contended that the scheme of road widening had started as back as in 2007 and it was within the knowledge of the petitioner that such scheme was in progress, therefore if the petitioner, despite such knowledge has raised any construction, it is entirely up to the risk and cost of the petitioner. Learned Counsel further contended that the road widening schemes are generally for the benefit of the public at large, therefore it has to be given priority as against the interest of an individual. Learned Counsel also contended that the respondent has already preferred a Civil petition for Leave to Appeal bearing No. 797/2011 (Printek Private Limited V/s Shahid Nabi Malik & Others) before the Hon’ble Supreme Court on 22.08.2011 against the judgment dated 24.06.2011 which is pending. Learned Counsel also contended that since the road widening scheme is in the interest of the public, therefore the Notification impugned herein can be applied retrospectively. Learned Counsel further contended that for the benefit of the public, land can be acquired by the official respondents, therefore if need arises, the land in question can also be acquired under the Land Acquisition Act 1894. In support of his contention the learned Counsel for respondent has relied upon the case of Sub. (Retd) Muhammad Ashraf V. District Collector Jhelum and others (PLD 2002 SC 706), Nisar Ahmed Khan & others V. Collector Land Acquisition Swabi and others (PLD 2002 SC 25), Federal Government Employees Housing Foundation and another V. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad (PLD 2002 SC 1079), Pakistan Muslim League (N) through Khawaja Muhammad Asif, MNA and others V. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 SC 642), Muhammad Jahangir and others V. Government of Punjab and others (2000 MLD 1196), Haider Ali and 9 others V. Deputy Commissioner Karachi and 3 others (1986 MLD 2650), Federation of Pakistan and others V. Shaukat Ali Mian and others (PLD 1999 SC 1026), Commissioner of Income Tax V. Shahnawaz Ltd. And others (1993 SCMR 73), Imtiaz Ahmed and others V. Punjab Public Service Commission trough Secretary, Lahore and others (PLD 2006 SC 472), Mst. Ummatullah through Attorney V. Province of Sindh through Secretary Ministry of Housing and Town Planning, Karachi and 6 others (PLD 2010 KARACHI 236), Ardeshir Cowasjee and others V. Government of Sindh and others (1998 MLD 1219) and Messrs Excel Builders and others V. Ardeshir Cowasjee and others (1999 SCMR 2089). Learned Counsel also specifically relied upon the Judgment dated 24.6.2011 which has also been reported as Printek (Pvt) Ltd. Through Executive Director and 3 others V. Shahid Nabi Malik (2011 YLR 2941).
6. Mr. Rafiq Kalwar learned Counsel appearing on behalf of respondent No. 2 in C.P. No. D-582/2012 (petitioner in C.P. No. D-3508/2011) contended that the principle of constructive Res-judicata is applicable in the matter as the respondent has already challenged the judgment dated 24.06.2011 before the Hon’ble Supreme Court by raising the same legal questions as raised in CP NO. 582/2012. Learned Counsel further contended that the road widening scheme has been approved in collusion between SBCA, CDGK and the respondent, as it is only for the benefit of the respondent that such a scheme has been approved, whereas, the road for which impugned Notification has been issued is not a main road and merely a 40 feet wide service road. Learned Counsel further submitted that the respondent has admittedly challenged the judgment dated 24.06.2011 before the Hon’ble Supreme Court on the one hand, and is also trying to take refuge on the basis of the same Judgment, in support of the road widening scheme; hence the stance of the respondent is contradictory in nature as the respondent at the same time is aprobating and reprobating. Learned Counsel prayed for the dismissal of the respondent’s petition on the basis of above submissions. Learned Counsel also referred to a report which has been placed on record by the learned Counsel for NESPAK through statement dated 04.02.2013 and issued by M/S NESPAK who was appointed as Commissioners for inspection of the project by this Court vide order dated 29.11.2011 which is available at page 889 of file of C.P. No. D-3508/2011 and contended that the said report was also in favor of the petitioner as no irregularity of any sort has been pointed out in the said report.
7. Mr. Syed Sultan Ahmed learned Counsel appearing on behalf of the CDGK (“KMC”) contended that in terms of Section 40 of the Sindh Local Government Ordinance, 2001 a master plan can also be revised and for such purposes a resolution was passed by the City Council, Karachi vide resolution No. 312 dated 15.1.2007 as per agenda item No. 4.3.6(d). Learned Counsel submitted that road widening scheme is part of the Public Sector Development Program 2020 (“PSDP-2020”) and was approved after carrying out a study in a comprehensive manner and after preparation of a survey report. Per learned Counsel this was in the larger interest of the public and of vital importance, therefore such widening of service road from Malir Road Bund Expressway from 30-40 feet to 80 feet wide has been approved. Learned Counsel further submitted that this road widening scheme was under consideration of CDGK since 2008. In this regard the learned Counsel referred to letter dated 7.5.2008 written by the Master Plan Group of Offices (MPGO), CDGK to the EDO Transport and Communication. Learned Counsel also referred to Chapter 16 of the 2002 Regulations, especially Regulation 16.1.1. & 16.2.2 and 16.3. Learned Counsel further submitted that since it is a matter of public interest, therefore the impugned Notification dated 03.01.2012 can be applied retrospectively. In support of his contentions learned Counsel relied upon the case of M/s Army Welfare Sugar Mills Ltd. and others V. Federation of Pakistan and others (1992 SCMR 1652).
8. Ms. Rizwana Ismail Learned Counsel appearing on behalf of SBCA contended that though no sanction of scheme of the area has been approved; however in terms of Section 14 of the SLGO 2001 Re-classification of area is permissible. Learned Counsel contended that no proper procedure has been followed in the instant mater as the Environmental Impact Assessment has not been obtained in accordance with the Environmental Protection Act 1997, therefore before proceeding with the road widening scheme and the construction of the project, the concerned agency has to be approached for issuance of a proper No objection Certificate in the matter. Learned Counsel also referred to an advertisement dated 30.3.2012 published in daily DAWN and submitted that substantial compliance regarding calling public objections as required under regulation 16.2 of the 2002 regulation has been made by SBCA, hence the respondent’s petition be allowed and the petitioner’s petition be dismissed. In support of her contention the learned Counsel has relied upon the case of Nighat Jamal Vs. Province of Sindh and others reported in 2010 YLR 2624.
9. We have heard all the learned Counsel and perused the entire record and the case law relied upon by all the learned Counsel. By consent of all the learned Counsel for the parties in both the petitions, both the petitions were taken up for final disposal at the Katcha peshi stage.
10. It appears that the controversy in the instant matter is in respect of the same portion of the property (“Arcade”) which was also the subject matter in C.P. No. D-2150/2006 filed by the respondent against the petitioner and others. The said petition was disposed of by a Learned Division Bench of this Court vide judgment dated 24.6.2011. We have been informed that the respondent has already challenged the said judgment, before the Hon’ble Supreme Court through CPLA No. 797 of 2011 which is pending. In the said petition the respondent had prayed as follows:-
i) Declare that the official Respondents’ approval of the architectural plans submitted by the Respondent No.1 in respect of plot No.13, Survey Nos. 110 & 111, Deh Drigh Road, Shaheed-e-Millat Expressway, off. Korangi Road, Karachi, and the grant of NOC for public sale in relation thereto; is illegal, without jurisdiction and void, ab-initio;
ii) Restrain the Respondent No.1 from raising any construction upon the said plot;
iii) Restrain the Respondent No.1 from advertising the sale of units in the said building project and from allotting units therein or otherwise creating any manner of the of third party interests in the said building project;
11. The case of the respondent in the said petition was that construction was being carried on illegally and in violation of the approved building plan and the said construction was being raised at a distance of 40 feet from the building of respondent. Though several objections were raised by the respondent in respect of the approved building plan and the alleged violations committed by the petitioner, but for the present purposes, the issue which was raised in the said petition and is also the subject matter of the instant petition is in respect of the definition of Arcade given in Regulation No. 2-12 of the 2002 Regulations read with Regulation 25-3.2. The objection so raised by the respondent was to the effect, that though Arcade was permissible under the said Regulations, but no construction was allowed to be raised over the Arcade which according to the respondent had been permitted by SBCA in the said project. It was further alleged that the petitioner was raising construction on the said Arcade up to the entire level of the building by raising construction of flats on the said portion of the Arcade. The learned Division Bench vide its judgment dated 24.6.2011 has dealt with the issue of construction on the said portion of Arcade at Para 49 in the following manner:-
49. The next objection raised by the learned Counsel for the petitioner is that no construction can be made on the Arcades in accordance with the provisions of regulation 25-3.2(3). This objection has also been opposed by the learned Counsel for the Respondent No.1 who has submitted that there is nothing in the objection to substantiate that above the Arcade there can be no construction. He further submitted that it is a settled principle of interpretation that whatever is not expressly prohibited is permitted. From a perusal of 25-3.2(3) we have seen that in case of corner buildings, COS have been condoned and Arcades can be provided and Arcade is defined in the regulation 2-12 to mean “a covered walk-way or a verandah between the shops and the street/footpath on which the shops abut”. While we agree that compulsory open space means the spaces open to sky but the definition of Arcade leads to the conclusion but it is not open to sky but a covered walkway and once a provision for condonation of compulsory open space is provided irrespective of commercial plans and it has been provided that Arcades will be provided then unless it is specifically prohibited we are of the view that construction can be allowed on such Arcades. However, it the Arcades have been provided for the purpose of extension of the roads then perhaps no construction can be allowed on such Arcades as if construction is allowed and tomorrow the road is being extended the entire construction may have to be demolished for the purpose of extension of the road which is a public utility. However, if the Arcade is a part of the plot and is not to be considered for extension of road then construction can be allowed. The KBCA is directed to ascertain whether such Arcades may be subject to demolition in case extension of road is required on or any part of the plot and then decide this issue in the light of the above observations.
12. The learned Counsel for respondent has informed this Court that the said judgment has been impugned before the Hon’ble Supreme Court in CPLA No. 797/2011 which is pending, however it was admitted that neither leave has been granted in the matter nor any interim order has been passed as yet. It further appears from the record that after passing of the judgment dated 24.6.2011, SBCA and CDGK had initiated the exercise of demolishing some part of the construction of the said project and such exercise was purportedly carried out for the purpose of road widening scheme in pursuance of Resolution No. 312 dated 15.1.2007 passed by the City Council Karachi. It is also a fact that at the time when demolition was impugned in the instant petition, only the aforesaid resolution was in field and the Notification dated 03.01.2012 was not issued. In fact this resolution was also in field when this Court had passed the judgment dated 24.06.2011. The petitioner being aggrieved with such action was compelled to file the instant petition, challenging the action of demolition being carried out on the said part of the project as well as Resolution No. 312 dated 15.1.2007. Insofar as the case of the petitioner is concerned, the raising of construction on the Arcade is settled in its favor, by this Court through judgment dated 24.6.2011 and further, since the matter was pending before the Hon’ble Supreme Court, wherein neither any interim orders were passed nor the operation of the said judgment was suspended, the exercise of road widening scheme being initiated by CDGK and SBCA through Resolution No. 312 dated 15.1.2007 and through issuance of Notification dated 03.01.2012 was based on malafides. Therefore the demolition of the construction raised on the said portion of the Arcade, was unlawful. It further appears that after filing of the instant petition, and during pendency of the same, SBCA in exercise of the powers conferred under section 21-A of the Sindh Building Control Ordinance, 1979 vide its Notification dated 03.01.2012 made amendment in Chapter 16 (widening of roads) in 2002 Regulations and approved the road widening scheme from the existing width of 30-40 feet to the proposed width of 80 feet. The petitioner, thereafter through an application under Order 6 rule 17 CPC sought amendment in the pleadings and has also challenged the said Notification dated 03.01.2012 which was published in the Sindh Government Gazette on 5.1.2012. After going through the judgment dated 24.06.2011 and the relevant Para 49 of the said judgment, we are of the view that prima facie the contention of the learned Counsel for the petitioner that issuance of Notification dated 03.01.2012 on the part of SBCA / CDGK seems to be an act tainted with malafides is correct, as it was issued at the behest and to accommodate the respondent who had in fact failed to seek any favorable order in the earlier round of litigation from this Court in C.P. No. D-2150/2006. It further lends credence from the fact that such Notification has been approved for a service road and has been made operative retrospectively. It has been approved for the said portion of the Arcade which was never available for a road widening scheme and is in fact a part and parcel of the petitioner’s property on which the said project in question is being constructed. We have also noted with concern that in fact SBCA / CDGK, instead of following the directions of this Court given in judgment dated 24.6.2011 started the exercise of road widening scheme by placing reliance on a Resolution passed in the year 2007 by the City Council, Karachi. This Court in the said judgment dated 24.06.2011 had observed that if the Arcade has been provided for the purposes of extension of roads, then perhaps no construction can be allowed on such Arcades. However, if the Arcade was a part of the plot and was not to be considered for extension of roads then construction can be allowed. In the instant matter such fact has not been controverted by SBCA / CDGK that the Arcade has been raised on the portion of the plot which did not belong to the petitioner. The Court had further directed the then KBCA (SBCA) to ascertain whether such Arcade may be subject to demolition in case extension of road is required on or any part of the said plot and then decide the issue in respect of such Arcade, in the light of the observations of this Court in the said judgment. We are afraid that neither the Counsel for the respondent nor for SBCA / CDGK have assisted us with regard to the implementation of Para 49 of the judgment dated 24.6.2011. Contrary to this, the Counsel for the respondents have taken a stance, specially the Counsel for the CDGK that this is a case of public interest and being of vital importance, therefore, widening of the said service road from Malir Road Bund Expressway and its linkages to Korangi Road was required, hence the said Notification was issued. They have further made an attempt to justify the impugned Notification by making submission that the issue of Road widening was under consideration with the concerned Department since 2008 and was in fact Re-initiated vide letter dated CDGK/MPGO/DO(MP-84/57) dated 6.8.2011 as it was considered to be in the best interest of the people of the area. According to the learned Counsel for CDGK item No. 4.3.6(d) of the Resolution No. 312 dated 15.1.2007 has been given effect to. In our view this argument on behalf of the official respondents cannot be approved by this Court for the reason that the resolution being referred now was in fact very much available when the matter was being adjudicated by this Court in C.P. No. D-2150/2006, wherein, no such plea was taken, raised or was even discussed in the said judgment. Therefore, now at this belated stage, no reliance can be placed on the said Resolution, as the matter has already been decided by this Court vide judgment dated 24.6.2011.
13. There is another aspect of the matter and that is, whether the impugned Notification can have any retrospective application in the peculiar facts and circumstances of the instant case, wherein the controversy in respect of construction being raised on the Arcade has already been adjudicated upon by this Court vide judgment dated 24.06.2011. It is pertinent to note that the impugned Notification allows road widening on the same portion of the Arcade which was in dispute in the earlier round of litigation through CP No D-2150/2006. Therefore, it needs to be examined that whether the same could have any retrospective application as against the interest of the petitioner in respect of the said portion of the Arcade. Though it is not in dispute that in fact the impugned Notification is in respect of road widening scheme, but admittedly the said road widening scheme has been approved on the portion of the plot of the petitioner (Area of the Arcade), regarding which the learned Division Bench of this Court in the judgment dated 24.06.2011 had given certain directions to the official respondents. However, the official respondents instead of making any efforts for implementation of the said judgment have resorted to the road widening scheme, which has brought the present controversy before this Court. It is in this context of the proceedings, that it needs to be examined, whether the impugned Notification is being applied retrospectively to the case of the petitioner and against the vested rights, if any, accrued to the petitioner; in view of the judgment of this Court dated 24.06.2011. In the case of Works Co-operative Housing Society and another Vs The Karachi Development Authority reported as PLD 1969 SC 391, the issue before the Hon’ble Supreme Court was that whether the appellant was entitled to be allotted land for its housing scheme on the basis of directions by the Central Government in its letter dated 14.06.1964 directing the Provincial Government to consider the commitment of allotment of land to the appellant and accommodate the appellant as far as practicable, would be binding on the respondents or not. The Hon’ble Supreme Court held as under:
“After hearing arguments in the case we reserved order, so as to enable the learned Advocate-General to find out from the Provincial Government whether they were prepared to withdraw the previous notification or to modify it, so as to remove the obligation of the Karachi Development Authority to allot land to the appellant society. The papers now submitted show that the Provincial Government has not thought it fit to modify its earlier notification which stands in its full rigor as before. They have merely, however, expressed an opinion in a letter to the Advocate-General that the relevant provision in the notification, left a discretion to the Karachi Development Authority to allot land to the appellant-society or not. With this opinion we are unable to agree. As we have observed above, the proper construction of the relevant provision of the statutory notification is that it leaves no unfettered discretion with the Karachi Development Authority and the allotment to the appellant-society could only be refused, so long as the notification stands intact, if it became physically impossible for the Karachi Development Authority to make the allotment, as originally contemplated. This is, by no means, the case.
We therefore allow this appeal and issue direction to the Karachi Development Authority that they should honour the commitment of the Government expressed in the notification of the Provincial Government dated the 9th June 1964, in respect of commitment to the appellant-society, and not to depart from the direction given in that notification, so long as it stands intact. The parties will be left to bear their own costs in this Court. (Emphasis supplied).
The respondents taking advantage of the words “so long as it stands intact”, subsequently issued two further notifications dated 03.10.1968 and 14.10.1968 respectively whereby the obligation of the Karachi Development Authority to allot land to the appellant-society under the Notification of the 9th June 1964, was purported to be deleted. Thereafter the matter came up before the Hon’ble Supreme Court once again on a miscellaneous application. The said judgment is reported as PLD 1969 SC 430 in the case of Works Co-operative Housing Society and another Vs The Karachi Development Authority. The Hon’ble Supreme Court held as under:
In the present case, the main question, in my view is as to what was the intent of this Court when it said that the Development Authority could not depart from the direction contained in the notification of the 9th June 1964 “so long as it stands intact”. Did it contemplate that the withdrawal of the notification by the Provincial Government at a subsequent stage would defeat the right of the appellant-society? Was this Court thereby only declaring a right contingently? I think not.
It is now well settled that a Notification cannot be made to operate retrospectively and I think that there can be no manner of doubt that a judgment of a Court declaring a right cannot be nullified by executive action. I cannot, therefore, persuade myself to impute to this Court any intention of authorizing an illegality. This Court does not also as a rule deal with hypothetical cases. Where no existing right is established no question of granting any relief by this Court can arise particularly, in proceedings initiated under Article 98 of the Constitution. It is difficult, therefore, to appreciate as to how this Court could be said to have declared in the appeal, from which the present application arises, only a contingent right defeatable at the will of the Provincial Government.
In my view the words “so long as it stands” occurring in the last paragraph of the judgment in appeal means no more than this that since relevant provisions of the notification dated 9-6-64 had not been altered till then the commitment subsisted and the appellant-society was entitled to the allotment. It could never have been the intention of this Court to give to the Provincial Government a right to amend the notification in such a way as to nullify it own judgment.”
14. From the perusal of the above referred observations of the Hon’ble Supreme Court in the cited judgments (Supra), it is clear that in cases where the issue has been decided by the Courts, the executive has no authority to issue notifications so as to nullify the effects of the judgments of the Court by giving such notifications any retrospective effect. What has happened in the instant matter is exactly the same. The respondents are trying to give effect to the impugned Notification which is in fact having a direct effect on the vested rights accrued to the petitioner on the basis of the judgment of this Court dated 24.06.2011. The respondents, rather ought to have implemented the judgment by taking steps which were in conformity with the said judgment, instead of entering into an exercise of road widening. Therefore, in our opinion, in addition to the observations in the instant judgment, even otherwise, the impugned Notification dated 03.01.2012 cannot be applied retrospectively in the instant matter as vested rights have accrued to the petitioner after passing of judgment dated 24.06.2011 by this Court.
15. The Counsel for CDGK has also relied upon the minutes of the meeting dated 7.12.2011, in which purportedly the matter regarding the road widening scheme was considered at agenda item No. 4.3.6(d) and the recommendations regarding the road widening scheme in respect of service road of Malir Expressway Bund towards Defence Regency (project of petitioner) and passing between the said project and the Express Channel building (Respondent’s office building) connecting to Korangi road from 30-40 feet wide to 80 feet road was approved. On perusal of the said minutes of the meeting, it appears that though the said meeting was convened after passing of judgment dated 24.6.2011, to our dismay, the directions given by this Court in the said judgment which were in the knowledge of official respondents, no reference was made to the directions of this Court, nor any discussion whatsoever appears to have been made which may reflect that as to whether the directions of this Court were even taken into consideration in the said meeting or not. It may be observed that the judgment dated 24.6.2011 was specifically in respect of the construction of Arcade on the building and road widening thereon. It is further noted with concern, that though normally CDGK may not be obligated to call any affected party to attend the meeting of this sort, but in a matter wherein, a petition had been decided by this Court with certain directions to the said respondents, then it was mandatory for the official respondents to call the aggrieved party i.e. the petitioner while taking such an important decision which was going to directly affect the petitioner’s interest and rights. In fact, the official respondents have not disputed that the said portion of the plot on which the Arcade was being constructed does not belong to the petitioner, or the same is already not a part of the said plot of the petitioner on which the project in dispute is being constructed. In view of such position this fact cannot be denied that instead of following and implementing the directions of this Court in the judgment dated 26.6.2011, the official respondents have chosen to take up the road widening scheme independently to circumvent and defeat the directions of this Court, by relying upon some decision with regard to (KSDP of 2020) and have further chosen to take up such road widening approval in the said meeting dated 7.12.2011 where after the impugned Notification dated 03.01.2012 appears to has been managed. In our view, such act on the part of the official respondents is based on malafides as they have not only attempted to circumvent the procedure which was required to be followed by them, but also made an attempt to flout the directions of this Court as contained in the aforesaid judgment of this Court on the subject controversy. They have in fact tried to do indirectly, which they could not do directly; hence such conduct of the official respondents cannot be appreciated by this Court, rather has to be deprecated.
16. The official respondents have also pleaded that besides this being a plan and vision for year 2020, the said road widening scheme is in the larger public interest. On a query by this Court that as to whether any study or survey was ever carried out on the basis of which it could be said firmly, that such road widening is necessary in the larger public interest, no plausible or satisfactory reply was submitted on behalf of SBCA / CDGK. We have also noted that the road widening scheme under discussion is in respect of a “service road” and not for a main road. We are unable to understand as to how a road widening scheme can be justified on a service road or a bye-lane which otherwise is not all the way a through road, particularly, when numerous other “main roads” of the City are in dire need of such road widening. Therefore, this contention also fails and cannot be accepted in the absence of any supporting study or survey conducted by the respondents in this regard.
17. It is pertinent to note that in terms of regulation 16.2.2 of the 2002 Regulations, SBCA is required to issue a public notice and to call for the objections from the general public before initiating any road widening scheme. It has been admitted by the learned Counsel appearing on behalf of SBCA that no such public notice was ever issued before taking up this important decision regarding the said road widening scheme. The learned Counsel for SBCA referred to an advertisement published in daily DAWN on 30.3.3012 and submitted that Regulation 16-2-.2 of the 2002 Regulations have subsequently been complied with, through the said advertisement. Such contention of the learned Counsel for SBCA is totally misconceived as the advertisement for calling public objections is required to be published prior to taking up the road widening scheme as required in terms of Regulation 16-2.2 ibid, which in fact in the instant matter has been duly notified on 03.01.2012, whereas, the said advertisement was published subsequently on 30.3.2012. Therefore the subsequent advertisement in the instant matter is of no help to the case of SBCA, rather it reflects malafides on the part of respondent SBCA, who were bent upon to get the road widening scheme approved by flouting the law, rules as well as the directions of this Court as contained in the above referred petition.
18. This Court vide order dated 29.11.2011 had appointed M/s NESPAK as Commissioner to carry out the detailed inspection of the Building and to submit report as to whether the construction raised/being raised is in conformity with the relevant law, rules and regulations and as to whether the same is being constructed in accordance with the approved plan or not. The said Commissioner was appointed with the consent of all the parties including SBCA. M/s NESPAK has submitted their detailed report along with comments and site plan on 04.02.2013 before this Court. It is pertinent to note that this report has been prepared by a Commissioner which was appointed by consent of all the parties whereas no objections have been filed by any of the parties in respect thereof, nor at the time of hearing of the petitions any such objection was ever raised before us. M/s NESPAK have observed in the concluding Para at pg: 9 of the report as follows:
“It is therefore verified from our site visit, detailed inspection and reviewing the approved drawings that the building has been constructed as per approved plans maintaining all open spaces, road cutting proper ramp width and its slope, etc.”
In view of such position, we are of the opinion that insofar as the controversy as to whether the construction being raised was in accordance with the approved plan or not, including that of the construction on the portion of Arcade, stands settled and there cannot be any exception to such position.
19. Respondents have reportedly challenged the judgment of the Division Bench of this Court dated 24.6.2011 before the Hon’ble Supreme Court vide CPLA No. 797/2011 relating to the construction on Arcade, however, the Hon’ble Supreme Court has neither passed any restraining order against the said judgment, nor even granted leave in the matter. The respondent has tried to take shelter of the Notification dated 03.01.2012 on the basis of which the alleged road widening scheme was purportedly approved by the official respondents. The proper remedy available to the respondent was in fact to pursue its case before the Hon’ble Supreme Court and not by filing a fresh petition before this Court on the same issue, which in fact has already been decided by a division bench of this Court as referred to hereinabove. Accordingly, we are of the opinion that the petition filed by the respondent i.e. CP No D-582/2012 is devoid of any merits and the same is hereby dismissed along with all pending application(s). Whereas the petition filed by the petitioner i.e. CP No D-3508/2011 is allowed and it is declared that the impugned Notification dated 03.01.2012 has been issued in violation of law, rules and the directions of this Court as contained in the judgment dated 24.06.2011 referred to hereinabove, whereas, the same has been issued without following the procedure as prescribed in regulation 16-2.2 of the KTBR Regulations 2002, accordingly, the same is hereby set aside. Both the Petitions stand disposed of in the above terms along with listed applications.
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