1987 PLP 1658 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑‑C.P.S.L. As Nos. 178/K and 198/ K of 1986 arise out of the same impugned orders dated 25‑2‑1986 and order containing detailed reasons dated 6‑3‑1986. Both these petitions will be disposed of by this single order.

2. It is stated in CPSLA 178/K/86 that Messrs Shaista Estates Limited, respondent No. 1 a private limited Company is the owner of a residential plot of land No. G‑7 situate in Block 9, Khayaban‑e‑Iqbal, K . D . A . Scheme No. 5, Clifton, Karachi. Lease Deed of the said plot was executed by the Karachi Building Control Authority, petitioner No. 1 in favour of Messrs Shaista Estates Limited respondent No. 1 for 99 years as a "residential" plot. Copy of the Lease Deed dated 21‑4‑1980 is annexed and marked 'C'; that with a view to raise multistoried building on the aforesaid Plot No. G‑7, respondent No. 1 applied to the petitioner No. 1. for permission/ N.O.C. for commercialisation of the said plot into G.C. category (Commercial), and deposited a sum of Rs.27,68,664 by way of "commercialisation charges"; that the competent authority issued the N.O.C. for conversion of "residential" plot into "commercial" as required under clause (11) of the Lease Deed; that the neighbours of the locality where the said plot is situated made representation to the Martial Law Administrator, Zone 'C' against commercialisation of the plot in question, as the same was to cause 'nuisance' to them and the Martial Law Administrator, Zone 'C' ordered for suspending the permission; that in pursuance of the said order the Karachi Building Control Authority petitioner No. 1 informed Messrs Shaista Estates Limited, respondent No. 1 that the letter authorising respondent No. 1 to raise commercial building on the said plot is suspended; that respondent No. 1 made some attempt to get the order of suspension vacated, failing which they filed Constitutional Petition No. 248/1985 in the Sind High Court seeking directive/order that the alleged order of suspension was without lawful authority, without jurisdiction and of no legal effect and that the N.O.C. granted to them, be restored. The learned High Court Judges issued the directive prayed for vide the impugned judgment dated 6‑3‑1986.

3. Learned counsel assails the impugned judgment on the following grounds: (i) that the suspension order of the Martial Law Administrator passed on 26‑5‑1984 or about, was immune from judicial scrutiny by the Courts under Article 270‑A of the Constitution read with section 15(2) of the Provisional Constitution Order, 1981; (ii) that the Martial Law Administrator having suspended the N.O.C. under section 16 of the Sind Building Control Ordinance, 1979 read with rules 6 and 17‑A of the Sind Government Rules of Business on the representation of the owners of the adjoining plots, it could not, therefore, be questioned in Court of law and the Order of Sind Building Control Authority dated 28‑5‑1984 suspending the N.O.C. issued vide letter dated 21‑4‑1984, had only been suspended pending final decision, and not finally cancelled; (iii) that the petition, as filed by respondent No. 1, was pre‑mature and not maintainable. (iv) that respondent No. 1 had an alternative remedy, the petition as filed, was not maintainable unless respondent No. 1 had exhausted the remedy available; (v) that clause (8) of the Lease Deed specifically provides that, the plot in question shall be used for "residential" purposes and shall not be diverted to other use, without the "previous consent in writing of the lessor KDA" and the lessor having neither been approached for "consent in writing" in terms of the Lease Deed, nor having allowed the same, the petition as filed by respondent No. 1, was pre‑mature and not maintainable in law, and (vi) that the Karachi Building & Town Planning Regulation Part II clause 4 (e) of Schedule D a "public notice" is required to be issued for inviting objections to conversion of the plot, commercialisation of the plot in question was, therefore, bad in law.

4. We have considered inter alia the contentions raised by the learned counsel and are of the view that the questions raised are of public importance. We grant leave. Security rupees one thousand. Appeal arising out of CPSLA No. 178/K/1986 to be heard on the present record with liberty to the parties to file additional documents, if desired.

5. In C.P.S.L.A. No. 198/K/1986 petitioner seeks leave to appeal against the same impugned judgment of the Sind High Court dated 6‑3‑1986 almost on similar grounds as have been urged in above‑mentioned C.P.S.L.A. No. 178/K/1986. We grant leave in this petition as well. Appeal to be heard alongwith the appeal out of CPSLA No. 178/K/1986. M. I./K‑23/S Leave granted