2006 PLP 3209 (YLR)

AMIR HANI MUSLIM, J.

The facts as they appear from the Memo. of petition are that the respondent No.1, claims to be owner of Plot No.24/1, Delhi Mercantile Muslim Cooperative Housing Society Limited, Karachi, measuring about 1202 square yards whereas the petitioner No.2 claims to be owner of Plot No.24/1-A measuring about 1056 square yards in the same Society. The petitioner No.3 also claims to be owner of Plot No.24/2 measuring about 1090 square yards in the said Society. Petitioner No.3 further claims to be owner of Plot No.24/5, which is approximately 1006 square yards in the Society.

2. It has been pleaded that somewhere in the month of February, 1998 all the three petitioners after obtaining approval from the relevant authorities got the four plots, referred to hereinabove, into amalgamated one plot as Plot No.1, Delhi Mercantile Muslim Cooperative Housing Society Limited, Karachi, the area of which comes to about 3454 square yards. In this respect the Society has also issued allotment letter to the petitioners. The petitioners claim that they approached the respondent No.4 in 1998 with the request to commercialize the Plot No.1 and on 10-2-1998, the respondent No.4 issued NOC and recommended the case of commercialization of the respondent No.5, for which the petitioners claim to have paid the requisite fees to the respondent No.5. After due examination of the case of commercialization by the respondent No.5 on 11-3-1998, the respondent No.5 recommended to the respondent No.3 to accede to the request of the petitioners for commercialization of the said Plot No.1 in the Society.

3. The petitioners claim that during pendency of the request of the respondent No.5 with the respondent No.3 for commercialization, the respondent No.1 had imposed ban on conversion of plots from residential to commercial use, which were located at Shahrah-e-Faisal. The petitioners have claimed that the plot in question is located on Shahrah-e-Faisal. After exchange of correspondence between the petitioner No.1 and respondent No.5, the petitioners approached different authorities, including the Ombudsman who had also directed the City Nazim of the respondent No.2 to expedite the process of commercialization. Ultimately, under the new policy the City District Government has consented to commercialization at enhanced rates. The petitioners, therefore, have approached this Court for the following reliefs: (i) Direct the respondents Nos.1, 2 and 3 to commercialize the plot of land of 'the petitioner being Plot No.1, Delhi Mercantile Muslim Cooperative Housing Society Limited, Karachi, Blocks 7 and 8, measuring about 4354 square yards. Shahrah-e-Faisal, Karachi on payment of the fee that was applicable at the time of submission of petitioner's application dated July 28, 1998 for commercialization. (ii) Any further order or orders which this Honourable Court may deem fit and appropriate in the circumstances of the case."

4. The petition came up for hearing along with other connected Petitions Nos.771, 936, 1122 of 2004. As the points raised in these proceedings were common to the aforesaid petitions but since the facts were distinct, the aforesaid petitions were disposed of by a short order dated 5-1-2004, however, this petition was further heard and by short order dated 11-11-2004 it was partly allowed. These are the reasons for the same.

5. The stand of the respondents in these proceedings was common to the stand, which have taken in the referred petitions, which petitions were disposed of on 5-11-2004. In the aforesaid petitions, we have held that pursuant to the Notification dated 20-7-1998 issued by the respondent No.1, in purported exercise of its powers under section 40(3) of the KDA Order, six different roads of Karachi, including Shahrah-e-Faisal were declared commercial. Therefore, any plot facing Shahrah-e-Faisal was covered by the Notification dated 20-7-1998 issued by the Provincial Government and no permission either from KDA or from any other authority for change of status of plot from residential to commercial was required. Hence we have held in those petitions that the KDA or any other authority which has entered into the shoes of the KDA, could not charge commercialization fee in respect of properties which are located on the said roads of Karachi, which were notified as 'commercial' in the said notification of the Sindh Government.

6. In the present proceedings the issue is somewhat different. The petitioners seek commercialization of our plots, which they claim to have been amalgamated as one plot. The amalgamated plot of which commercialization is sought, if revived to its previous position, would reflect that only sub-divided Plots Nos.24/1, 24-1/A and 24/2, were facing Shahrah-e-Faisal and sub-divided Plot No.24/5 did not have any access to Shahrah-e-Faisal, Karachi. Therefore, .we are of the opinion that the original plots of petitioners i.e. Plots Nos.1 and 2, (now sub-divided in Plots Nos.1-A, 1 and 2) Delhi Muslim Cooperative Housing Society Limited, measuring 2137 and 2141 square yards already stood commercialized on the basis of our judgment delivered in C.Ps. No.D-771, 936 and 1122 of 2004. Therefore, the petitioners in respect of the said plots are not required either to approach the City District Government, Karachi or any other authority for seeking permission of conversion from residential to commercial use and the petitioners would be free to construct a commercial building on said two (now three) plots after necessary approvals are obtained by them from the relevant authorities. However, in regard to sub-divided Plot No.24/5, which now petitioners claim to form part of amalgamated Plot No. 1, cannot be given benefit of commercialization as the said sub-divided' plot is not facing Shahrah-e-Faisal and therefore, cannot be included in the same category as the plots facing Shahrah-e-Faisal. Nevertheless, as the petitioners have applied sometime ago for its commercialization, the said request of the petitioners for the said sub-divided Plot No.24/5 would be processed by the concerned authorities at the rate prevailing at the time when such application was made as this issue has already been decided by us in our judgment passed in the other three Constitution petitions, referred to herein-above. H.B.T./A-116/K Order accordingly.