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Civil Petition No. 276‑K of 1986, decided on 24th August,1986.

(On appeal from the judgment and order of the High Court of Sind at Karachi, dated 29‑5‑1986 passed in Constitutional Petition No. D‑982 of 1983).

---‑‑‑Art. 185(3)‑‑Karachi Development Authority Order (V of 1957), S.52‑A‑‑Petition for leave to appeal‑‑Petitioners challenging order of third respondent which converted into residential area a plot reserved for a park in vicinity of plots owned by petitioners‑‑Reasons given by respondent for shifting park not factually challenged by petitioners‑ Residents for area provided with amenity of a park and respondents satisfactorily showing compelling circumstances under which park had been shifted and action was taken in public interest‑‑Held, action taken by respondent was not without any justification in circumstances and any interference would disturb a large number of persons while maintenance of the order would not cause any harm to petitioners and residents of society‑‑Leave to appeal refused.

Fazle Ghani Khan, Advocate Supreme Court instructed by Muzaffar Hassan, Advocate‑on‑Record for Petitioners.

Mubarak Hussain Siddiqui, Advocate Supreme Court instructed by Nazir Ahmad Siddiqui, Advocate‑on‑Record for Respondents Nos.1 and 2.

Dewan Bashir Ahmed, Advocate Supreme Court instructed by Ahmedullah Faruqi, Advocate‑on‑Record for Respondent No.3.

Date of hearing: 24th August, 1986.

This petition is from the judgment of the Sind High Court whereby a Constitutional Petition of the petitioners was dismissed.

2. The petitioners are owners/ allottees of various residential plots which they have purchased from K.D.A. through respondent No.3 in Block No. 18, K.D.A. Scheme No. 24, Culshane Iqbal, Karachi. According to the petitioners the lease‑deeds executed in their favour by the K.D.A. mentioned the existence of a park in the vicinity of their plots but later in 1983 the third respondent, namely, the Works Co‑operative Housing Society Ltd., converted the said plot reserved for the park for residential purposes by sub‑dividing it and allotting the same, inter alia, to respondents Nos. 4 to 17. In doing so, no objections were invited by the third respondent from the members of the Housing Society. The complaints of the petitioners made to the relevant quarters having proved abortive, they filed a Constitutional Petition in the High Court which was dismissed as per impugned judgment.

3. The substance of the grievance of the petitioners was that they purchased their respective plots for construction of residential houses having been attracted by the existence of a park in the vicinity and as a result of conversion of the park area for residential purposes, the facility of the park was lost to them. This contention was refuted on behalf of the respondents Nos.2 and 3 and it was stated that the original allotments were made by drawing of lots with no choice of selection of the site to the petitioners or their predecessors from whom plots were purchased by some of them. It was further asserted that after an area of about 60 Acres of land was earmarked for the disputed park in Block No.18, it was discovered that giant water pipe‑line were passing under another portion of land reserved for residential plot. A concrete cement drain also passed under the said area of land and all this was found to be affecting 68 'A' type and 11 'B' type residential plots. For such reasons the plan was revised and the site of the park was shifted to accommodate the allottees of plots in the affected area.

4. In the High Court reliance was placed on behalf of the petitioners on section 52‑A of the Karachi Development Authority Order No.V of 1957, while the respondents relied upon Article 51 which deals with alterations of improvement scheme after sanction. According to the petitioners the action of the respondents Nos.2 and 3 amounted to conversion of Scheme No.24 itself and, therefore, action could be taken only after due compliance of the provisions of Article 52‑A, whereas it was contended on behalf of the respondents that it was not a case of conversion of the scheme but related to the revision of the site plan of Block No. 18 only. The learned High Court found that respondents Nos.2 and 3 were fully competent to alter the site plan, or scheme even after the same had received sanction from the Provincial Government in exercise of their power under Article 51 of the Karachi Development Authority Order. This did not need any sanction from the Provincial Government. On such findings the Constitutional Petition was dismissed as per impugned judgment.

5. It was contended by the learned counsel for the petitioners that the learned High Court had erred in interpreting Article 52‑A of Karachi Development Authority Order of 1957 and in holding that the respondents Nos. 2 and 3 were empowered to take the impugned action under section 51 of the said Order. We are, however, not inclined to examine the correctness of the judgment of the High Court on the question of applicability of one Article of the Karachi Development Authority Order or the other because of the peculiar facts of this case and would leave the matter open for consideration in some appropriate case. The reason given by respondents Nos. 2 and 3 for shifting of the park, as mentioned hereinabove, was not factually challenged by the petitioners. It has also not been disputed that the residents of Block No. 18 have been provided with a park and, therefore, such amenity has not been denied to the residents of the area. The respondents Nos.2 and 3 have satisfactorily shown the compelling circumstances under which the park had to be shifted and the action was, therefore, taken in public interest. Besides, as a result of the shifting of the park the persons affected have been accommodated at the site of the disputed park and allotments have been issued to the respondents Nos.4 to 17. Admittedly at least one of them has already started construction on the allotted plot. In this view of the matter we find that the action taken by the respondents Nos.2 and 3 was not without any justification and any interference at this stage would disturb a large number of persons while maintenance of the order will not cause any harm to the petitioners and other residents of the society.

Having been persuaded by such consideration we would refuse leave in the matter and dismiss the petition.

M . Y . H . Petition dismissed.

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