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January 2, 2019

No more commercial activities in Clifton’s residential areas, orders SHC

Karachi

January 2, 2019

KARACHI: The Sindh High Court (SHC) has barred all restaurants, beauty parlours and private clinics from operating in residential parts of Block-4, Kehkashan, Clifton, warning that if they failed to act on the order within a month, the government will take action accordingly.

The order came on over two dozen lawsuits filed by different people against the Sindh Building Control Authority (SBCA) that has restrained private restaurants, beauty salons, schools and clinics from using residential parts in Clifton’s Block-4 for commercial purposes.

The plaintiffs’ counsels Abdur Rehman, Mohammad Vawda and others said the Sindh High Density Development Board was promulgated in 2010 and empowered to declare various areas as high density zones, which allows the conversion of land to commercial.

They said the entire Block-4 is situated in the commercial vicinity and there are various high-rises, so there is no necessity for the owners to take any further steps for converting them.

They added that the SBCA lacks jurisdiction in the matter, as the lease of the property in question has been issued either by the Karachi Metropolitan Corporation (KMC) or the Karachi Development Authority (KDA), and it is not for the SBCA to monitor the usage of the property.

They said the law permits conversion of land and the plaintiffs have already approached the competent authority for that, so even until such a time those applications are decided, no adverse action can be taken.

They contended that post-2016 all such powers that were earlier with the SBCA vests in the KDA, so the “impugned” notices are without jurisdiction.

The KDA’s counsel said the lease that has been issued is for residential purposes, but in most cases it is the tenants and not the owners who have come before the court and have no locus-standi or a better title than its owner, so they are not entitled to any relief.

He said the KDA has never been approached by them nor any NOC has been given to use these properties for commercial purposes, so according to him, no case for any injunction is made out. He added that even otherwise, the law does not permit any such conversion of change of land use.

The SBCA’s counsel Saba Siddiqui said that all the plaintiffs as well as others in the said area deliberately and without permission have violated the law as well as policy and directions of the KDA, the KMC and the SBCA by using these properties for commercial purposes.

She said the KDA’s master plan department is now working under the SBCA and is authorised and empowered to convert property into commercial, but subject to town planning regulations.

She added that none of the plaintiffs, barring a few, have yet approached in a proper manner for any such conversion, while even otherwise, the properties do not qualify for such change of land use in terms of the relevant laws.

She said that proper notices were issued by the SBCA calling relevant documents, and in case of failure to stop usage of the property for commercial purposes, sealing notices were issued, and the plaintiffs have immediately impugned these notices and obtained restraining orders, which are still continuing. The SHC’s single bench headed by Justice Mohammad Junaid Ghaffar observed that a mushroom growth of such conversions and usage has taken place without due approval in accordance with the law, and after starting such usage and illegal conversion, courts are approached, and ex-parte interim orders are obtained on one pretext or the other, on the question of jurisdiction and otherwise.

The court observed that this mess of non-conforming use of residential properties for commercial purposes has already disrupted the entire civic fibre of the city, and is an increasing threat to the quiet and comfortable living of residents of the vicinity as a whole and must not be left out at the cost of expediency or expectations of the plaintiffs and their business interests.

The court observed that the properties of the plaintiffs were not on the same roads or on the roads that have been commercialised, or could be commercialised under the law, so no such case could be made out. The court observed that it is also settled law that two wrongs do not make a right.

And even if the SBCA has no jurisdiction to issue the impugned notices or to take any action, said the bench, this does not give rise to making out a prima facie case, as even otherwise, under the law, the premises in question presently cannot be converted for commercial purposes in any manner whatsoever.

The court observed that the plaintiffs have failed to make out a prima facie, as neither balance of convenience lies in their favour nor any irreparable loss will be caused to them, as they are presently involved in an activity that is against the law and must not be permitted to be continued on the basis of an injunctive relief.

The court dismissed all the listed applications for injunction and directed the plaintiffs to stop using their premises for commercial purposes within a month, failing which the relevant government authorities will act accordingly.

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