1998 PLP 1061 (CLC)

HAMID ALI MIRZA, J.‑‑‑This is a Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan filed by the petitioners wherein they have prayed that respondents Nos.l to 3 be directed to do their statutory duty by restraining respondents Nos.4 and‑5 from changing use of the open space designated in the annexed plan as Farm in Block VIII, illegally numbered as CC‑8, Clifton, Karachi and to eject them as well as demolish any structure so far raised and to restore the plot to its original position and further that respondents Nos.4 and 5 be directed not to make any booking for shops or flats or to create any third party interest therein any further to set aside the orders with regard to change of use of the plot in question made by the respondents Nos. 4 and 5 and to cancel allotment/lease granted in respect of said open space designated as Farm and further to prohibit change of use and illegal construction on the said plot, or sale, transfer or giving possession or any part thereof. Brief facts of the case as stated are that petitioners are residents of Block VIII, Clifton, Karachi and they have acquired their residential plots/house/bungalows in the said locality in Block VIII, Clifton, Karachi, designated for purely residential use with amenity plots provided in the Master Plan and the leases in their favour contained covenants restricting use of the plots to be residential, however, amenity plot adjoining Plot Nos.CC‑7 and St‑6 is designated as Farm and it has remained as open space but same was unlawfully allowed by the respondents Nos.l to 3 to be converted by respondents Nos.4 and 5 to other use who have started booking of shops and flats and started unauthorised construction thereon and despite notices and personal approaches to all respondents specially respondent No.3, no action so far has been taken. The respondents Nos. 1 to 3 are not authorised to change the use of the said plot without complying with the provisions of Karachi 41 Development Authority Order V of 1957, Sindh Building Control Ordinance and Regulations as well as provisions Cantonment Act, 1924 which compliance has not been done and said respondents have permitted conversion unlawfully numbered now as CC‑8 to the said plot to bring it into the same category of use as other plots with similar category of use and no notice to any one including petitioners or public hearing as required by law was given by the respondents in flagrant violation of the Articles 39 to 42, 69, 72 to 45 and 136 of Karachi Development Authority Order V of 1957 as well as instructions of Government. It is further submitted that petitioners would be adversely affected because they would have been benefited most from the designated use of the plot as Farm being in the immediate vicinity thereof, hence the present petition with the relief prayed for. We have heard learned counsel Mr. Samiuddin Sami for petitioners, Mr. Dasti Muhammad Ibrahim for respondent No. 1, Ms. Masooda Siraj for respondent No.4 and Mr. Muhammad Sharif for respondent No.5. Learned counsel for petitioners has argued that the petitioners are residing in Block VIII which is a residential locality but the respondents Nos. 1 and 2 have converted the use of small plot of land admeasuring 600 sq yds. which was earmarked as Farm other than, residential and has been numbered as CC‑8, Block VIII, Clifton, Karachi, as the said plot was shown as Farm in Karachi Development Authority official publication of 1985 which was shown in the Master Plan and environmental control department of Karachi Development Authority considering that the said plot adjoins park marked as ST‑6, which appeared to have been carved out of the said park. He further argues that the Minister's Order, dated 17‑2‑1990 converting the use of the said plot would corroborate that the said plot was originally meant for the residential purposes but was ordered to put to some other use and it was therefore, that the allotment of the said Plot CC‑8 was also cancelled by the caretaker Government but the said order of cancellation was removed from the said file. He further argues that in fact there was no Plot bearing No.CC‑8, Block VIII, Clifton, as would appear from the summary of the Secretary House Town Planning which he submitted to the Minister. He argues that admittedly no notice about the change of use from amenity/vacant plot to commercial use to the public or to the petitioners was given therefore, the allotment of the plot to the respondents as such was illegal, considering also that amenity plot would include Farm within the meaning of Article 29(n) of K.D.A. Order, when Article 43 of K.D.A. Order prohibited the use of land for any other purpose than laid down in the zonal plan scheme and if the land was to be put to other use, the authority was to afford to public hearing before converting the use of the land but in the instant case no such hearing was afforded. He has placed reliance upon Suleman Mala v. Karachi Building Control Authority and three others (1990 CLC 448); (ii) Mst. Feroza Hajiani and another v. Abdul Razzak and another (1992 MLD 527); (iii) Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512); (iv) Mst. Sardar Begum Faruqui and six others v. Rashida Khatoon and two others (1990 CLC 83); (v) Khokhar Engineering Company v. Habib Bank Limited (1986 MLD 2941) (vi) Ghulam Nabi v. Khuda Bux and two others (PLD 1984 Karachi 245, D.B.); (vii) Yousuf Ali v. Muhammad Aslam Zia and two others (PLD 1958 SC (Pak.) 104); (viii) Ardeshir Cowasjee and four others v. M/s. Multiline Associates (PLD 1993 Karachi 237) (ix) Multiline Associates v. Ardeshir Cowasjee and others (1995 SCMR 362) in support of his contentions. Learned counsel for K.D.A. has submitted that main issue in this matter would be whether Plot CC‑8 was commercial plot or was a Farm. He further argued that the petitioners were neither allottee nor residing in the vicinity hence they have no locus standi to file present petition considering that the petitioners Nos.2 to 4 have withdrawn the petition as per their affidavits and that petition involved complicated questions of facts which could be determined through process of evidence, hence civil suit would be adequate and efficacious remedy as such the petitioners could not be permitted to invoke the Constitutional jurisdiction of this Court. He has submitted that Scheme N.5 called Kehkashan Scheme wherein Block VIII is situated consisted of plots for commercial/ residential and amenity as per lay out plan of 1972 of the scheme and it was incorrect that Block VIII of said scheme only consisted of residential and amenity plots. He further submitted that the Plot CC‑8 is also situated within the said block of the scheme and the said block is commercial as other commercial Plots CC‑1 to CC‑7 are situated adjacent to each other and the blue print Annexure ' R' showing the location of said plot would corroborate the above said submissions of the respondents, therefore, the allegations of the petitioners are unfounded. He has further submitted that the drawing plan produced by the petitioners in the Court is unauthenticated as it was not signed by competent Authority, therefore, same could not be relied upon whereas the' true copy of extract of approved plan of 1972 in respect of Scheme No.5 produced by K.D.A. respondent, indicated disputed plot as vacant but shown to be adjacent to other commercial plots numbered as CC‑8 by the competent Authority. He has further submitted that no Farm ever existed in the said block considering also that the Plot CC‑8 is situated in thickly populated locality having other commercial plots and a park in the locality. He submitted the building control of the said area is within the jurisdiction of Cantonment Board therefore, building plans have been approved by Karachi Clifton Cantonment Board and respondent K.D.A. has nothing to do with the approval of building plan, and further that the Plot No.CC‑8 was commercial plot and accordingly was allotted and leased out as commercial as per approved lay out plan of Scheme No.5 as per Annexure R‑1' of the blue print and the plot in question was never amenity plot. Mr. Muhammad Sharif and Ms Masooda Siraj have submitted that the petitioners have built their case on an unauthenticated map so as to designate the said plot as Farm whereas the original map produced by K.D.A. showed the said plot in dispute as CC‑8 when the said plot was not shown as Farm either in scheme of 1958 or 1972, extracts of the both schemes would support respondents' contention, considering that zonal scheme was revised in 1972 and the brochure produced did not show any Farm or open space in block 8, Clifton, Scheme No.5, Karachi, so also the scheme of 1972 and further that it was no body's case that the scheme of 1972 was amended or modified in accordance with procedure prescribed by Article 40 of K.D.A. Order hence the unauthorised and illegal mention of Farm in subsequent document would be illegal in view of the documents produced by the respondents and that the summary produced by K.D.A. would also show that the word Farm was introduced illegally and the enquiry was ordered to be conducted as to how the word 'Warm' was written in the plan when in the scheme of 1972 and the brochure there was no Farm shown or known. He further submitted that the amendment in the scheme could be made through gazette notification and any alteration in absence of following the mandatory procedure would not be legal. He also submitted that Article 40(2)(4) of K.D.A. would not be applicable as the said plot was never reserved for any such purpose mentioned in said provision. He has further submitted that disputed questions of facts which have been raised in this petition could not be determined on the basis of documents before this Court as to whether the disputed land was a Farm and how and when this was made and by whom hence the petition would not be maintainable. Besides he submitted the ordinary meaning of Farm is a body of land under one ownership devoted to agriculture either for raising crop or pasture or both as per Black's Law dictionary revised IV Edition, page 734 but in the instant case there was no evidence of user as to Farm. He submitted plot in dispute was allotted to one Abdul Saeed Sheikh in 1990 as commercial plot and was transferred to Vanita as commercial plot who got a public notice published in the newspaper inviting objections but none filed such objections and the said plot was purchased by respondent No.4 after publication of public notice and after plans were approved by Cantonment Board for commercial purpose after examining the relevant documents when respondent K.D.A. had executed the deed in his favour and after six months of transfer as commercial plot the respondent No.4 raised construction of basement, ground, mazzanine, first floor and sold out the same and respective purchasers were in possession and the petitioners approached this court after third party's acquired rights who could not be penalized for the alleged wrong acts of K.D.A. considering also that the Constitutional jurisdiction being discretionary one, whereas the petitioners have not acted promptly, therefore, would not be entitled to the discretionary relief and further technicalities could not to be enforced/divorced from the consideration of equity and justice. Reliance has been placed upon Muhammad Nur Hussain v. The Province of East Pakistan (PLD 1959 SC (Pak.) 470); (ii) Mst. Allah Rakhi v. Settlement Commissioner, Sargodha Division (PLD 1983 Lahore 444); (iii) Datari Construction Co. (Pvt.) Ltd. v. A. Razak Adamjee and others (1995 CLC 846); (iv) Begum Shamsun Nisa v. Said Akbar Abbasi and another (PLD 1982 SC 413) and (v) Malik Nazir Ahmed and another v. Government of West Pakistan and others (1968 SCMR 322). In the instant case, the petitioners have placed reliance upon a plan annexure A, photocopy of which has been filed whereas the respondents have denied the authenticity of the said Annexure showing the plot in dispute as Farm. In rebuttal the respondents have filed Master Plan 1958 as Annexure R/l, Master plan of 1972 as Annexure R/2 and schedule of Master Plan 1972 as Annexure R/3, master plan (Part portion) lay out plan Clifton Block VIII, 1985‑87 uptodate with schedule as Annexure R/4, site plan of CC‑8 Block VIII, Clifton as Annexure R/5, public notice, dated 23‑4‑1990 as Annexure R/6, public notice, dated 22‑7‑1994 published in daily Dawn an Annexure R/7, possession order, dated 19‑3‑1990 as Annexure R/8, allotment order attested by K.D.A. as Annexure R/9, transfer order of commercial Plot CC‑8 Clifton attested by K.D.A. as Annexure R/10, approval plan from Clifton Cantonment Board, dated 7‑12‑1994 as Annexure R/11, transfer order in favour of respondent No.4 in respect of Plot No.CC‑8 Block VIII Clifton attested by K.D.A. as Annexure R/12 and lease‑deed, dated 16‑3‑1995 in favour of respondent No.4 as Annexure R/13. The petitioners have based their case that the plot in dispute was a Farm, therefore, the same being amenity plot could not have been converted to a commercial plot in absence of compliance of K.D.A. Order and regulations whereas the above Annexures filed by the respondents contradict the said fact that the disputed plot was a Farm. The dispute as to whether the plot in question was a Farm or was a commercial plot considering that admittedly adjacent plots are commercial hence the said fact would require evidence keeping in view the documents produced by the respective parties. The dispute in fact as said above can be decided only after recording of evidence of parties and such questions of fact cannot be agitated and decided in the Constitutional petition. It is settled law that this Court sitting in the Constitutional jurisdiction is not ordinarily to undertake adjudication of a question of fact particularly when the disputed questions cannot be resolved with the help of admitted documents. This petition would require a finding on the disputed documents and controversial questions of facts which according to settled law would need evidence. The nature of controversy particularly the legality and correctness of the Annexure A in presence of other Annexures viz. R/1 to R/13 showing the disputed plot as commercial one would be a controversial fact of the parties needing evidence to arrive at a conclusive finding which cannot be given in the writ jurisdiction of this Court. Reference may be made to Syed Saghir Ali v. Mehar Din and others (1968 SCMR 145) wherein it was observed: "These disputed questions which involve investigation into facts cannot be decided by short handed method of a writ. They should be properly raised in a suit, for decision on the basis of evidence and in relation to issues drawn out of the pleadings. " (ii) Malik Nazir Ahmed and another v. Government of West Pakistan and others (1968 SCMR 322) wherein it was observed: "The petitioners' grievance is that the building in question would, affect their right of easement of light and air, they being the neighbouring tenement holders. The proper remedy of the petitioner was to lay a claim against the Corporation that they could not sanction such a plan, if there is any force in the contention that the Government orders, relaxing the bye‑laws, was ultra vires. The question whether these rights of easement would or would not be affected by the construction of the building in question, would entail investigation of facts. The matter was not, therefore, a fit one for adjudication under Article 98 of the Constitution. If so advised, the petitioners can seek redress by means of a regular suit against the Corporation or their third respondent. " (iii) Karachi Municipal Corporation v. M/s. Harjina Salt Chemicals Ltd. and three others (1988 SCMR 1259) wherein at page 1268 it was observed: "However, as held by the High Court this being an intricate question of fact a Court sitting in constitutional jurisdiction should not ordinarily undertake adjudication of a question of fact particularly when it is a disputed question which cannot be resolved with the help of admitted documents. " (iv) Benedict F.D.'Souza v. Karachi Building Control Authority (1989 SCMR 918) wherein it was observed:‑‑‑ "After hearing the petitioner on the aforestated view of the High Court we are of the opinion that in the circumstances of the case the filing of the Constitutional petition in the High Court was not the proper remedy. Factual controversies, involved in the case, could not be solved without a full‑fledged trial. Accordingly, we find that the approach of the High Court in its discretionary writ jurisdiction to decline relief to the petitioner, was unexceptionable. " We have gone through the above cited cases relied upon by the learned counsel for petitioners and find that the facts of the cited cases are quite different and distinguishable to the facts of instant case, therefore, the same are not applicable. In view of aforesaid reasonings, we find that disputed intricate questions of facts are involved in this petition which would need elaborate investigation, enquiry and evidence which cannot be undertaken in the writ jurisdiction of this Court considering that the both parties have disputed even on the documents produced by them, therefore, this petition is not maintainable and is hereby dismissed. These are the reasons in respect of short order passed by us on 3‑12‑1997. A.A./M‑264/K???????????????????????????????????????????????????????????????????????? Petition dismissed