2000 PLP 1660 (MLD)

(i) declare the failure of the respondents, in particular respondents,, Nos.2 to 4 (Member (Land Utilization) Secretary (Land Utilization] and Karachi Building Control Authority) in not issuing the final approved plan as completely without jurisdiction, unlawful, mala fide, unconstitutional, against fundamental rights, and void ab initio and of no legal effect; (ii) declare that condition No. l to the final approved plan marked Annexure "E‑1 " is void, redundant and has already been complied with; (iii) declare and hold that the respondent No.4 (Karachi Building Control Authority) can issue the final approved plan for construction without waiting for any further correspondence or intimation from respondents Nos. l, 3, 5 and 6 (Province of Sindh, Secretary (Land Utilization) Deputy Commissioner and Assistant Commissioner (Revenue); (iv) direct the respondents to issue the final approved plan so that the construction could be commenced; (v) award costs; (vi) award any other relief."

2. We have heard Dr. Muhammad Farogh Naseem, counsel for the petitioner, Mr. Raja Sikandar Khan counsel for the K.B.C.A. and Mr. Iqbal Raad, the Advocate‑General who has appeared on Court Notice as well as for all other respondents.

3. In the comments filed by the K.B.C.A. and also orally, Mr. Raja Sikandar Khan has contended that since the Board of Revenue, the lessor of the plot, while forwarding the plan to the K.B.C.A. has imposed the condition through its letter, dated 20‑2‑1998 that final approval shall be subject to the permission of the Board of Revenue, the K.B.C.A. cannot issue the final approved plan for construction till such time such clearance and permission is obtained from the Board of Revenue. The respondent No.5 i.e. the Deputy Commissioner of South had submitted his comments and has supported the stance of the K.B.C.A. Mr. Iqbal Raad, the learned Advocate- General, has also vehemently contended that since the condition in the letter, dated 20-2-1998 pertaining to issuance of the final permission by the Board of Revenue has not been complied with the K.B.C.A. was fully justified not to issue the final approved plan.

4. The learned counsel for the petitioner in reply has contended as follows:‑‑ (a) The Board of Revenue is' only the lessor and is only empowered to check the ownership and title of the land or whether any conditions of lease have remained uncomplied with. The power and authority of the building control is to be exercised by the K.B.C.A. under the Sindh Buildings, 'Control Ordinance, 1979 and for which the Board of Revenue has no power and authority to interfere. As such the interference by the Board, of Revenue restraining the K.B.C.A. to issue the final approved plan for the purposes of construction is totally without jurisdiction, mala fide and unconstitutional; (b) the condition ,contained in the letter, dated 20‑2‑1998 (Annexure "D‑1") directing the K.B.C.A. not to issue the final approved plan for construction till such time permission of the Board of Revenue is obtained is itself unreasonable, redundant and extraneous to the statute i.e. Sindh Buildings Control Ordinance, 1979 as also the Building Regulations and Bye‑Laws. In this regard it is contended that the Board of Revenue, being the lessor, has already confirmed the ownership and title of tote land in favour of the petitioner and being satisfied with the same it has forwarded the plans to the K.B.C.A. Also in this regard the fact that the plans have been so forwarded by the lessor to the K.B.C.A. confirms that no lease conditions have been violated. As such the learned counsel has argued that the requirement to obtain the permission of the lessor stands fully complied with and any further condition to obtain a second permission or approval is totally redundant, unreasonable, unfounded and is liable to be struck down. (c) the petitioner has complied with all possible requirements of both the K.B.C.A. and Board of Revenue, and hypothetically speaking, even if the condition to obtain a second approval from the Board of Revenue was valid, the failure of the Board of Revenue to grant such final approval is totally mala fide and amounts to an abuse of discretionary powers; (d) with regard to grant approvals by the Board of Revenue in the case of H‑3/1 type plots, similar to that of the petitioner, specific illustrations have been pointed out where the Board of Revenue has expeditiously granted like approvals and permissions as sought by the petitioner. These: illustrations are attached as Annexures "M‑1 to "M‑14" to the petition and consequently, an argument has been pitched up that the failure of the Board of Revenue to grant a similar approval in the case of the petitioner is discriminatory and violative of Article 25 of the 1973 Constitution.

5. We have given our anxious thought to the matter at hand. Nothing has appeared in the comments of the respondents nor the learned counsel for the respondents have pointed out to a single deficiency on the part of the petitioner in complying with any conditions or requirements of the lessor i.e. the Board of Revenue. As regards K.B.C.A., the final letter, dated 15‑7‑1999 categorically confirms that there is no impediment to the grant of final approval of the petitioner except the fact that the final permission from the Board of Revenue is to be obtained. It is most unfortunate that the petitioner despite having complied with all the necessary requirements has been subjected to harassment by the Board of Revenue and has been forced to go in for the present litigation. The Board of Revenue itself having confirmed the ownership and other lease requirements forwarded the plans to the K.B.C.A., which in turn after scrutinizing the petitioner's application has issued the necessary plan from the Town Planning and architectural points of view. The further requirement to obtain another approval by the lessor/Board of Revenue would be completely unreasonable and unjustified. Under the Sindh Buildings Control Ordinance, 1979 the K.B.C.A. is the authority constituted under section 4 of the said Ordinance to enforce its provisions. The preamble of the Ordinance provides as follows:‑‑ "Preamble.‑‑‑ Whereas it is expedient to regulate the planning quality of construction and building control, prices charged and publicity made for disposal of buildings and plots by builders and societies and demolition of dangerous and dilapidated buildings in the Province of Sindh. "

6. The above categorically confirms that as regards construction it is only the K.B.C.A. and not the Board of Revenue which is the competent: Authority. The Board of Revenue, being the lessor, is only competent to check the ownership and title of toe land and scrutinize as to whether any lease conditions have been violated or not. Once the lessor (Board of Revenue) forwards the construction plan to the K.B.C.A., it necessarily checks 'the ownership/title of the land and also confirms the compliance of lease terms and conditions. Accordingly, the requirement to obtain the permission of the Board of Revenue/lessor would stand satisfied once such plans are forwarded. Thus, any further condition to get a subsequent or second permission from the lessor/Board of Revenue would be totally redundant, unjustified and would unnecessarily subject the citizen to further red-tapism. Similarly, there is nothing in the Sindh Buildings Control Ordinance, 1979 to justify imposition of such a condition whereby a second time approval from the lector is required. Here it would not be out of place to cite another decision of this Court in Century Links Development Corporation (Pvt.) Ltd. v. Karachi Cantonment Board and others C.P. No. D‑800 of 1999 (unreported) dated 8‑7‑1999 wherein a Division Bench of this Court struck down a condition, in relation to construction, to obtain a further no‑objection certificate from the Station Headquarters, Karachi Cantonment, as extraneous to the statute, unreasonable, completely without jurisdiction and mala fide. In that case writing for the Court, one of us i.e. Dr. Ghous Muhammad, J., while relying upon a number of judgments of our Supreme Court, including Amanullah Khan v. Federal Government of Pakistan PLD 1990 SC 1092, Chairman, R.T.A. v. Pak Mutual Insurance Co. PLD 1991 SC 141 and Federation of Pakistan v. Ibrahim Textile Mills Ltd. 1992 SCMR 1898, extracted the following principles of law:‑‑ (i) All discretionary powers vested in an Executive Functionary are to be exercised reasonably, justly, fairly and not arbitrarily, unreasonably and in a manner completely extraneous to law and ' statute; (ii) the failure of a statutory functionary to accord approval and a no objection certificate once the', citizen complies with all the formalities and requirements of law, is' mala fide and violates the settled law pertaining to structuring the discretion; (iii) once there is more than one 'possible manner to' take an. action, in exercise of lawful discretion would mean that the particular permissible option is exercised which is in the best interest of the citizen who is seeking the State Functionary to exercise the discretion.

7. In the present case; even if the condition in the letter, dated 20‑2‑1998 (Annexure "D‑1") to obtain‑‑the final permission of the Board of Revenue is taken to be valid,, the failure of the Board of Revenue to accord such permission when the petitioner had complied with all the possible requirements would be totally mala fide, without jurisdiction and unconstitutional. The petitioner having applied as late as 22‑11‑1997 for the approval of its plans to the Board of Revenue, is still running around from pillar to post to get its legitimate rights. Apart from this a number of illustrations have been given and examples cited by the petitioner where in similar situations the Board of Revenue has granted the necessary approvals. The failure to grant the final approval is obviously discriminatory and in complete violation of Article 25 of the Constitution. Furthermore, we feel I that the condition to obtain a second time approval from the Board of Revenue, when it has already forwarded the plans of the petitioner to the K.B.C.A., while checking the necessary title and ownership of the land, as contained in the letter, dated 20‑2‑1998 (Annexure "D‑1 ") and as condition No. l in the revised approval from the town planning point of view, dated 9‑9‑1998 issued by the K.B.C.A. (Annexure "E‑1") would be totally extraneous to the statute and unreasonable. Invoking the principle of law enunciated in Century Links Development Corporation (Pvt.) Ltd. (cited supra) we hold that such condition to obtain another approval from the Board of Revenue is completely without jurisdiction, redundant and unlawful and the same is hence struck clown as unenforceable. The reason being that firstly, the matters of building control are totally within the competence of K.B.C.A. and the Board of Revenue as the lessor, cannot interfere in such functions; secondly, such condition already stands complied with as the necessary plan has already been forwarded by the Board of Revenue, and hence a second time approval from the Board of Revenue would be totally unreasonable and bad. In other words, as the ownership of the subject had stood checked in view of forwarding of the plans by the Board of Revenue, the said Board had completed the function it was competent to perform. Thus, a second permission from the Board was totally meaningless.

8. The petition is accordingly allowed with costs as prayed. It is specifically declared that the condition to obtain any further permission from the Board of Revenue is completely without jurisdiction and unlawful, while the K.B.C.A. i.e. the respondent No.4 is directed to issue the final approved plan without any further delay. Q.M.H./M.A.K./S‑17/K Petition allowed.