IN THE SUPREME COURT OF PAKISTAN 
 
  (Appellate Jurisdiction) 
 
 
 
 
 
 
Present 
 
 
 
 
Mr. Justice Mian Saqib Nisar 
 
 
 
 
Mr. Justice Ejaz Afzal Khan 
 
 
 
 
Mr. Justice Umar Ata Bandial 
 
CIVIL APPEAL NO. 620 OF 2006 
(On appeal from the judgment dated 11.07.2005 passed 
by High Court of Sindh, Karachi in Const.P.1207 of 2004) 
 
 
Mansoor Sharif Hamid & others   
… 
… 
Appellants  
 
 
 
 
Versus 
Shafique Rehman & others  
 
… 
… 
Respondents   
 
 
 
 
For the appellant 
 
: 
Mr. Khalid Anwar, Sr. ASC.  
 
 
 
 
 
Mr. Afsar Abidi, ASC.  
 
For respondent No.10 
: 
Syed Jamil Ahmed, ASC.  
 
Respondent No.3 
 
: 
Ex-parte. 
 
For remaining respondents: 
Nemo.  
 
Date of hearing  
 
: 
24.02.2015. 
 
 
 
 
 
JUDGMENT 
              UMAR ATA BANDIAL, J.— This appeal by leave of the Court is 
directed against the judgment of the learned High Court of Sindh, Karachi 
dated 11.07.2005. The impugned judgment declares the alteration made by 
the appellant in the layout plan of his private housing settlement, 
involving the relocation of two plots reserved respectively for a mosque 
and a clinic at a short distance within the same area, as amounting to 
conversion of amenity plots contrary to Article 52-A of the Karachi 
Development Authority Order, 1957 (“KDA Order”) and the law laid 
down by this Court in Abdul Razzak   vs.   Karachi Building Control 
Authority (PLD 1994 SC 512).  
CA.620/2006 
2 
2. 
 
The leave granting order dated 20.04.2006 passed in this 
matter is in the following terms: 
“After hearing the learned counsel for the petitioners as well as 
the Additional Controller of Karachi Building Control Authority, 
we grant leave to appeal to consider, inter alia, the question 
whether the plot No. SD-I in KDA Scheme No.3, measuring 12 
hundred Square Yards was not an amenity or residential plot 
and whether the bar contained in Section 52-A (Clauses 2, 3 & 4) 
of the KDA Ordinance 1958, as amended by KDA (Sindh 
Amendment) Act, 1994 was attracted to the plot in dispute. Since 
a short point is involved, let the main appeal be set down for 
final hearing, on its present record, within a period of 4 months. 
Meanwhile, status-quo in respect of the property in dispute shall 
be maintained by all the parties concerned.”  
3. 
 
The private respondents No.1 to 8 before us were petitioners 
in a constitution petition decided by the learned High Court through the 
impugned judgment. These respondents have failed to appear or be 
represented before this Court on any date of hearing. An adjournment 
application made on behalf of respondent No.7 was allowed on 
09.02.2010. However, thereafter, on five dates of hearing, none has entered 
appearance on her behalf.  Although the substituted service of 
respondents No.1 to 8 by proclamation published on 20.01.2015 in the 
Daily News and Daily Jang (Karachi Edition) had been effected for 
hearing on 27.01.2015, however, this Court refrained on that date of 
hearing to proceed ex-parte against them, for the reason that thirty days 
time mentioned in the publication had not elapsed. Fresh notices were 
sent again to the respondents for today’s hearing. Report of the process-
server available on record reveals that some of the respondents refused to 
accept service; others were served through affixation whilst a few have 
shifted their addresses. As is apparent from the order sheet, the Court has 
made repeated efforts to secure the representation of the private 
CA.620/2006 
3 
respondents in the present proceedings, but to no avail. Resultantly, this 
matter has awaited adjudication since 2006. After the lapse of nine years 
of futile effort to procure representation of the said respondents, the Court 
is left with no option but to proceed against them ex-parte. It is so ordered.  
4. 
 
The salient facts of the case are that land measuring 11.35 
acres belonging to one Mst. Nargis Mistri was acquired by the Karachi 
Development 
Authority 
(“KDA”) 
sometime 
prior 
to 
1982. 
No 
compensation for such acquisition was paid to its private owner. The 
acquired land fell within the limits of KDA Gulistan-e-Johar Scheme 
No.36 (“KDA Scheme No.36”). By letter dated 18.12.1982 the KDA offered 
to lease the acquired land back to its original owner, Mst. Nargis Mistri 
with permission to develop a part of it as an adjunct to KDA Scheme 
No.36 subject to the following conditions: 
“i) 
The area of 4 acres containing fully grown trees would be 
maintained by the allottee as a garden.  
 
ii) 
The remaining area of the land measuring 7 acres was 
permitted for utilization, as per existing town planning 
rules and regulations, subject to approval by the 
KDA/Karachi Building Control Authority.  
   
iii) 
The allotment was subject to payment of annual ground 
rent, full occupancy value & fees and the outer 
development charges to KDA and concerned municipal 
authorities. 
  
iv) 
The allottee was made responsible for providing internal 
development facilities, such as water supply, sewerage 
system, storm water drainage at her own cost.“ 
 
5. 
 
The appellant is the attorney/successor of the original 
owner. He was issued an allotment-cum-possession letter by the KDA on 
18.06.1985 which restates the above mentioned conditions of land use and 
improvement. Learned counsel for the appellant has contended that as a 
result of the appellant’s compliance with the conditions conveyed by the 
KDA, a first layout plan of the appellant’s settlement, utilizing an area of 
7.35 acres was submitted to the KDA. This plan was approved by KDA on 
CA.620/2006 
4 
19.08.1985. It envisaged a public park measuring 4 acres encircled by 
residential, commercial and amenity plots. In the present context, plots for 
a mosque and a clinic were shown along the south end of the public park. 
On 09.09.1985, the KDA approved a second layout plan proposed by the 
appellant. This plan shifted the said amenity plots earmarked for a 
mosque and a clinic to the northwest of the settlement, adjacent to a plot 
previously reserved for ‘commercial use’ in the first layout plan. Soon 
afterwards, a third layout plan of the said settlement proposed by the 
appellant was approved by the KDA on 20.06.1987. According to this plan, 
the location of only the clinic was shifted to the south end of the 
appellant’s settlement upgrading the clinic into a hospital and giving it a 
larger area. The plot vacated by the clinic on the northwest side of the 
settlement was again classified as ‘commercial’ in the third layout plan 
and designated as plot No.SD-I measuring 1200 Sq. Yards (“disputed 
plot”).  
6. 
 
In their constitution petition filed in year 2004 the private 
respondents complained before the learned High Court that construction 
of a high-rise building was commenced unlawfully by the appellant on 
the erstwhile amenity plot reserved for a clinic. The appellant and the 
public respondents, in particular KDA and KBCA, had illegally converted 
that amenity plot into a commercial plot in violation of the conditions laid 
down in Article 52-A of the KDA Order. The counter affidavit filed in the 
learned High Court by the Deputy Controller of Buildings, KBCA refers 
correspondence by the Directorate of Land Management KDA Wing, 
CDGK reconfirming that the disputed plot is categorized as ‘commercial’. 
Accordingly, commission of illegality in the approval of the appellant’s 
building plan is denied.  It is a matter of record that the location to which 
CA.620/2006 
5 
the plot for a clinic had been shifted under the appellant’s second layout 
plan dated 09.09.1985 was reserved for commercial use under the first 
approved plan dated 19.08.1985. However, by considering the second 
layout plan as being final and binding, the impugned judgment dated 
11.07.2005 rejected the subsequent alteration made in the appellant’s third 
layout plan dated 20.06.1987. The finding is based firstly, on the principle 
laid down in Abdul Razzak’s case (supra) that an amenity plot cannot be 
converted to commercial use without inviting objections and obtaining the 
order of the government and secondly, on the prohibition imposed by 
Article 52-A(2) of the KDA Order. The said prohibition was incorporated 
in the KDA Order by means of the Karachi Development Authority (Sindh 
Amendment) Act, 1994. For the sake of convenience, the amending law is 
reproduced below: 
  
“WHEREAS it is expedient further to amend the Karachi 
Development Authority Order, 1957 in the manner hereinafter 
appearing: 
It is hereby enacted as follows: 
1. (1) This Act may be called the Karachi Development 
Authority (Sindh Amendment) Act, 1994. 
 
(2)  It shall come into force on and from 2nd May, 1994.  
2. 
In the Karachi Development Authority Order, 1957, in 
Article 52-A for clauses (2), (3) and (4) and Explanation 
thereunder, the following shall be substituted:-- 
“(2)  
No amenity plot reserved for the purpose 
mentioned in clause (1) shall be converted to or 
utilized for any other purpose.” 
3. 
The 
Karachi 
Development 
Authority 
(Sindh 
Amendment) Ordinance, 1994 is hereby repealed.” 
  
 
It is noted that the three layout plans of the appellant’s settlement were 
approved by the KDA during the period 1985 to 1987. On the other hand, 
the prohibition in Article 52-A(2) of the KDA Order was enacted in the 
year 1994. It is therefore apparent that the learned High Court applied the 
prohibition retrospectively to the appellant’s case whereas according to 
CA.620/2006 
6 
the language of the statutory amendment such an interpretation is not 
justified. Be that as it may, the un-amended Article 52-A of the KDA 
Order was in the field when the different layout plans submitted by the 
appellant were approved by the KDA. Accordingly, it is the original 
Article 52-A that applied to the case in hand for ascertaining the 
limitations, if any, imposed on alterations made in layout plans of a 
private housing settlement. Article 52-A was incorporated in the KDA 
Order through amendment made by the Sindh (Amendment of Laws) 
Ordinance, 1974  which is reproduced below: 
 
 
“After Article 52, the following shall be inserted:-- 
52-A. (1) The Authority shall immediately after any housing 
scheme is sanctioned by, or altered with approval of, 
Government, submit to the Commissioner the details including 
the survey numbers, area and location of each plot reserved for 
roads, hospitals, schools, colleges, libraries, play-grounds, 
gardens, parks, community centres, mosques, graveyards or 
such other purpose and the Commissioner shall notify such 
details in the official Gazette. 
(2) 
The Authority or the Housing Society may at any time 
prior to utilization of any plot reserved for the purpose 
mentioned in sub-section (1) apply to the Commissioner for 
conversion of such plot to any other purpose.  
(3) 
The Commissioner shall, on receipt of an application 
under subsection (2) invite objections from the general public 
through a notice published in one English and one vernacular 
leading local daily newspaper and the objections, if any, shall be 
submitted to the Commissioner within 30 days from the date of 
the publication of the notice.  
(4) 
The Commissioner shall, after considering the objections 
received under subsection (3) and hearing such persons as he 
may consider necessary forward his recommendations along 
with the application and other connected papers to Government 
for orders.” 
 
 
 
7. 
 
Learned counsel for the appellant has argued that while 
wrongly giving retrospective enforcement to the prohibition in Article  
52-A of the KDA Order, the learned High Court has also ignored certain 
important facts of the case. On these facts the present case remains outside 
the ambit of Article 52-A(3) and (4) of the KDA Order which specify the 
procedure for the conversion of amenity plots to other use. The second 
CA.620/2006 
7 
layout plan submitted by the appellant was given final and overriding 
effect by the learned High Court although it was one of the amending 
layout plans. The disputed plot in the appellant’s third layout plan was 
located in the same area that was reserved for commercial use in the 
original/first layout plan. As such the third layout plan reinstated land 
use in that area.  
8. 
 
More importantly, it is not alleged or shown by the private 
respondents No.1 to 8 that in 1987 when the disputed amendment in the 
layout plan was approved, the infrastructure and facilities of the 
appellant’s settlement had been implemented or that its plots had been 
announced for sale. It is more likely at that time the settlement was still on 
the drawing board rather than being occupied by residents. The 
documents on record show that the private respondent No.2 was the 
earliest amongst the objectors to get approval of KDA/KBCA dated 
12.06.1998 for his house building plan submitted for plot No.B-16, Block 2, 
KDA Scheme No.36. Indeed, the private respondents No.1 to 8 herein do 
not claim in their constitution petition that they were either resident in or 
owners of property in the appellant’s settlement or KDA Scheme No.36 
when the impugned amendment in the layout plan was approved. Also, 
the said respondents do not explain why the second layout plan of the 
appellant’s settlement dated 09.09.1985 enjoys primacy or finality because 
it is neither alleged to be notified in the gazette by the competent 
authority under Article 52-A(1) of the KDA Order nor to have been 
represented by the appellant for sale of plots to the public. On what 
criteria any of the three layout plans or indeed subsequent amendments 
thereto ought to be treated as final and binding is also not dilated by the 
learned High Court. The private respondents No.1 to 8 approached the 
CA.620/2006 
8 
learned High Court 17 years after the impugned amendment in the third 
layout plan was approved. It appears that they became aggrieved in 2004 
by the construction commenced on the disputed plot by the appellant. 
Conversion of land usage is claimed by learned counsel to be a convenient 
but mistaken label given to their grievance by the petitioners before the 
learned High Court to advance their object of blocking construction of a 
high-rise building undertaken by the appellant on a commercial plot. The 
learned High Court statedly accepted that version without verifying the 
allegation with reference to the facts on record. Therefore, the impugned 
judgment unfairly judges the disputed layout plan and compliant 
construction activity, upon standards that apply to conversion of usage of 
residential or amenity plots that were being specifically used as such.  
9. 
 
Since we have heard the present case in the absence of the 
objectors/private respondents therefore, we have considered the matter in 
issue and the material on record carefully so that no injustice is caused, in 
particular, to the public interest of the resident community in the 
neighbouring KDA Scheme No. 36.  
10. 
 
Certain distinguishing features of the present case may be 
noticed at the outset. These differentiate the controversy herein from cases 
in which strict injunctive action against high-rise construction has been 
ordered by this Court. Firstly, the provisions of the layout plan of the 
appellant’s settlement were proposed autonomously in accordance with 
the KDA Regulations and without being tied to conditions laid down in 
the master plan of KDA Scheme No.36. Accordingly the said master plan 
dated 17.12.1995 (available at page-6 of CMA No. 4972 of 2011) shows the 
appellant’s settlement (situated in Survey No.1, measuring 11.35 acres in 
Deh Safooran, KDA Scheme No.36) as a blank rectangle marked ‘Private 
CA.620/2006 
9 
Land’. Nevertheless, the appellant’s settlement remains in a sense an 
appendage to the KDA Scheme No.36. Within the small area of 11.35 acres 
of the appellant’s settlement, the development work is permitted and 
therefore proposed in a circular band measuring 7.35 acres that encircles 
an existing garden measuring 4 acres. In the said development area, the 
appellant had discretion to locate specified land use categories, i.e. 
residential plots, commercial plots, amenity plots according to his choice. 
Clearly, the location of each land use category is subject to conformity 
with the land use ratios prescribed in KDA Regulations and the approval 
of the competent Building Control Authorities. Viewed in that context, the 
present case concerns legality of not the conversion but the relocation of 
an amenity plot, namely clinic/hospital within the circular band of 
development around the central garden of the appellant’s settlement. 
Secondly, the disputed relocation of an amenity plot by the appellant does 
not eliminate or reduce that amenity area but actually increases its size 
from 1200 sq yards to 2000 sq yards. Thirdly, the disputed amendment in 
the appellant’s layout plan was made when the settlement was still at the 
planning and project implementation stage. There is nothing on record to 
suggest that by 1987 the appellant’s second layout plan was imbued with 
finality because it had been notified under Article 52-A(1) of the KDA 
Order or that the appellant had represented or advertised it to the public 
for securing the sale of plots in the settlement. Also, the private 
respondents have not alleged that by the year 1987, they had become 
owners or occupiers of plots situate in or neighbouring the appellant’s 
settlement. In that background, it is evident that an amendment in the 
layout plan, that is neither notified nor executed nor represented to the 
public, cannot become a basis for asserting third party vested rights. 
CA.620/2006 
10 
Indeed, it is more than a decade later that the private respondents claim 
that they acquired proprietary rights in KDA Scheme No.36 after 
purchasing land and planning houses in the area.  
11. 
 
To our minds, the above facts make the present case 
distinguishable from the existing legal precedents on the subject of 
conversion of residential or amenity plots for hosting high-rise 
commercial buildings. The allegation in the present case namely 
conversion of an amenity plot to commercial use was discussed and 
adjudicated in Ardeshir Cowasjee    vs.  Karachi Building Control 
Authority (1999 SCMR 2883). In that case the land reserved for a 
revolving restaurant in a public park on the Clifton beach was converted 
into a high-rise building comprising shops, apartments and a revolving 
restaurant. It was held that the conversion of an amenity plot was illegal 
because according to KDA’s notified Zonal Plan, only a revolving 
restaurant and not a commercial building was authorized to be 
constructed in the public park. The said park was already in public use. To 
alter the category of its land use, the public notice and objection procedure 
envisaged in Article 52-A(3) of the KDA Order had not been complied. 
Accordingly, the judgment struck down the conversion and affirmed the 
rule of strict enforcement Article 52-A(3) of the KDA Order. Abdul Razak   
vs.   Karachi Building Control Authority (PLD 1994 SC 512) was 
endorsed on the point that conversion of an amenity plot to another use 
without inviting and deciding objections is illegal. On facts that case 
involved the conversion of a residential plot to commercial high-rise 
construction in a developed housing scheme having residents. Such 
conversion was also held to be an abuse of discretion and therefore 
unlawful. The same view on the law was endorsed but on account of 
CA.620/2006 
11 
additional facts to yield a different result in Javed Mir Muhammadi    vs.   
Haroon Mirza (PLD 2007 SC 472). Each of the said cases mandates the 
strict enforcement of the provisions of Article 52-A(3) and (4) of the KDA 
Order against landowners who converted land usage of their plots, 
located in schemes that were already in the use and occupation of the 
public, for construction of high-rise buildings.  
12. 
 
The question that arises for determination is whether the 
facts of the present case attract that rule of strict enforcement of Article  
52-A(3) and (4) of the KDA Order laid down in the afore-noted judgments 
of this Court? The impugned judgment by the learned High Court holds 
in the affirmative but by retrospectively enforcing the 1994 prohibition 
incorporated in Article 52-A of the KDA Order in relation to the disputed 
amendment in the appellant’s layout plan made in the year 1987. That is 
not a valid ground of decision. However, the failure to invite objections to 
the appellant’s disputed third layout plan under Article 52-A(3) of the 
KDA Order, prima facie, discloses a serious default in the appellant’s case. 
The need for such notice and if so, the effect of its non-issuance in the 
present case has, however, not been discussed by the learned High Court.  
13. 
 
It stands to reason that there must be some pivotal event in 
the development stages of a housing scheme that fixes the starting point 
necessitating the issuance of public notice on a request for conversion of 
an amenity plot under Article 52-A(3) of the KDA Order. Article 52-A(1) 
of the KDA Order requires that details of amenity plots in a Scheme must 
be notified in the official Gazette. The notice under Article 52-A(3) ibid 
would plausibly become necessary after that notification because it  makes 
a representation to the public about the details of amenity plots. There is 
CA.620/2006 
12 
no material on record to show that the details of amenity plots in the 
appellant’s settlement were ever notified in the official gazette under 
Article 52-A(1) of the KDA Order. However, considering that the official 
act of said notification of amenity plots had been delayed or prevented by 
some cause, valuable public and proprietary rights cannot be allowed to 
be defeated by an act of omission by the concerned functionary. It is in 
that context that the distinguishing factual features of this case already 
noted above assume importance. If the erstwhile layout plan had been 
represented to the public for sale of plots or for any other reason, or that 
the amenity plot in dispute had been laid out and was being used by the 
public, then the members of the public may claim a right to defend and 
protect the same.  However, in the present case, neither of the said events 
are even alleged to have taken place prior to the disputed third layout 
plan of the appellant’s settlement. Add to this, the other features of this 
case, namely, the appellant’s freedom and discretion to locate amenity 
plots, the early stage of amendment of the layout plan of the settlement 
during its implementation, the relocation rather than conversion of an 
amenity plot at the said embryonic stage of development of the settlement 
and the non-existence of any private or public rights at that time in the 
layout of the settlement. These aspects of the matter militate the control of 
Article 52-A of the KDA Order over the appellant’s third layout plan.  
14. 
 
Under Article 40 of the KDA Order, Zonal Plans of urban 
areas must be notified in the Gazette. These demarcate land reserved for 
specified purposes like residential, commercial, industrial, recreational 
use, etc. Change in the use of land reserved for one purpose in the Zonal 
Plan to another must be preceded by public notice and hearing of 
CA.620/2006 
13 
objections by the KDA. Since Zonal Plans deal with large areas of land, 
hence it is neither alleged nor apparent from the record that any Zonal 
Plan delineating the appellant’s settlement was ever issued. Therefore, it 
appears that neither Article 52-A nor Article 40 of the KDA Order 
requiring public notice, hearing and determination of objections prior to 
allowing change of land use in a housing scheme applies to the present 
case. The premature enforcement of the said statutory safeguards under 
the KDA Order would thwart and arrest the object of the law, namely, 
land development through planned housing schemes that serve the 
interest of the public. 
15. 
 
For testing the validity of KDA’s approval of the appellant’s 
third layout plan under the KDA Order and regulations, the material date 
is 20.06.1987. If the said action by KDA complies the legal requirements as 
on 20.06.1987 then adherence of that amended layout plan to KDA 
building and construction regulations current in the year 2003 is not 
relevant because as noted above no third party interest could be adversely 
affected by those changes made in the layout plan. Secondly, it is not 
contested that the relocation of the disputed amenity plot, namely, 
clinic/hospital from one commercial area to another within the settlement 
scheme fully complied the KDA regulations prescribing land usage ratios 
reserved for commercial areas and also for amenity plots in the appellant’s 
settlement. Hence, no objection on this score has been taken against the 
validity of KDA’s approval dated 20.06.1987.  We therefore consider that 
non-compliance of the disputed layout plan with the KDA and KBCA 
regulations has not been made out on the present record. Accordingly, on 
CA.620/2006 
14 
its merits the approval of the appellant’s third layout plan is lawful and 
effective.  
16. 
 
Indeed the essence of the law enunciated on the subject is 
also the same. The rule has been reiterated consistently by this Court in 
Abdul Razzak’s case (1994; ibid) and Javed Mir Muhammadi’s case (2007; 
ibid) both relating to conversion of residential plots in developed areas of a 
housing scheme to commercial use on the one hand and in Ardeshir 
Cowasjee’s case (1999; ibid) concerning conversion of a portion of an 
amenity plot to commercial use as a high-rise building on the other hand. 
It is ruled that the law restricting conversion of land usage in housing 
schemes is not to be applied rigidly and pedantically but is meant to 
protect the public interest and public convenience. Reference is made to 
the apt observations made in this behalf in the Ardeshir Cowasjee’s case:  
“20.  
The perusal of the abovequoted extracts from the above 
judgments indicates that in the case of Abdul Razak, this Court 
has held that the power to regularize contained in the Ordinance 
and the Regulations is intended and designed to be exercised 
when irregularity of the nature which does not change the 
complexion or character of the original proposed construction nor 
it adversely affects third parties’ rights/interests. It has been 
further held that the paramount object of modern city planning 
seems to be to ensure maximum comforts for the residents of the 
city by providing maximum facilities and that a public 
functionary entrusted with the work to achieve the above 
objective cannot act in a manner, which may defeat the above 
objective. It has been further held that deviation from the planned 
scheme will naturally result in discomfort and inconvenience to 
others. It has also been held that framing of a housing scheme 
does not mean simpliciter, leveling of land and carving out of 
plots, but is also involves working out approximate requirement 
of water, electricity, gas, sewerage lines, streets and roads etc. and 
if a housing scheme is framed on the assumption that it will have 
residential units 1 + 1 but factually the allottees of the plots are 
allowed to raise multi-storeyed buildings having flats, the above 
public utility services will fall short of requirements, with the 
result that everyone living in the aforesaid scheme will suffer. It 
has also been held that to reduce the miseries of most of the 
Karachiites, it is imperative on the public functionaries like the 
Authority to ensure adherence to the Regulations. However, it has 
also been clarified that it may not be understood that once a 
scheme is framed, no alterations can be made. Alterations in a 
scheme can be made for the good of the people at large, but not 
CA.620/2006 
15 
for the benefit of an individual for favouring him at the cost of 
other people.”  
… 
… The power to regularize contained in the Ordinance and the 
Regulations is intended and designed to be exercised when 
irregularity is of the nature which does not change the complexion 
or character of the originally proposed construction. The 
Government or the Authority under the Ordinance does not enjoy 
unbridled or unfettered power to compound each and every 
breach of the Regulations. The Regulations should be applied for 
the benefit of the public and not for favouring an individual. 
Simpliciter the factum, that on account of tremendous increase in 
the population in Karachi the situation demands raising of high-
rise buildings, will not justify the conversion of residential plots 
originally intended to be used for building ground-plus-one and 
allowing the raising of high-rise buildings thereon without 
providing for required water, electricity, gas, sewerage lines, 
streets and roads etc.” (emphasis provided) 
    
The provision and preservation of suitable infrastructure in the target area 
of a development scheme as a public interest requirement of the law is 
particularly evident from the above quoted observations in Ardeshir 
Cowasjee’s case. The infrastructural facilities of a housing scheme or 
society like electricity, water, gas, roads, sewerage, etc. can be 
overburdened dramatically when land reserved for residential purposes is 
converted to commercial use. Equally, public interest suffers through 
deprivation when amenity plots are converted to other use. The irregular 
and unlawful conversion of plot usage creates undue congestion and load 
on the infrastructure and facilities of a housing scheme which puts the 
entire community to injury and loss. To prevent such congestion is the 
primary consideration of this Court in ordering the strict enforcement of 
building and land usage laws.  
17. 
 
However, in a case where the relocation (as against 
elimination or curtailment) of an amenity plot in a scheme takes place 
prior to or during the stage of implementation of its infrastructural 
provisions or before representation to or use by the public, the changes 
CA.620/2006 
16 
made in the layout plan should not injure public interest. This is because 
the proposed changes can anticipate and cater any increased requirements 
resulting from the relocation by making adjustments in the design and 
planning of the infrastructural provisions of the scheme. Without such 
adjustment there cannot be any merit to approvals granted by the KDA 
because an amended scheme without adequate infrastructure and 
facilities would forebode injury to and deprivation of convenience and 
comfort of the residents in such scheme. This aspect of the matter in such 
cases demands vigilance, attention and certification of the approving 
authorities namely KDA & KBCA rather than injunctive actions by 
members of the public based upon false presumptions of irregular 
conversion of land usage by a proponent of a private housing settlement.  
18. 
 
Accordingly, the upshot of the foregoing discussion is that 
Article 52-A of the KDA Order has been overstretched by the impugned 
judgment to apply in this case wherein the requisite ingredients for 
judicial intervention on that account are lacking. This is however, without 
prejudice to the enforcement of Articles 40 & 52-A of the KDA Order by 
residents/owners from the public against amendments made after the 
notification of the appellant’s layout plan or the acquisition of proprietary 
interest by the objecting members of the public in any plot neighbouring 
the disputed commercial plot or any changes made to an amenity plot 
after amendment of Article 52-A in 1994. Also the respondent KDA and 
KBCA are directed to ensure that the appellant’s disputed third layout 
plan and allied specifications faithfully comply the terms of the allotment 
letter dated 18.06.1985 and also make provision for adequate 
CA.620/2006 
17 
infrastructural facilities that sustain the erection of the proposed high-rise 
building on the said plot.   
19. 
 
For the foregoing reasons, this appeal is allowed and 
impugned judgment dated 11.07.2005, passed by the learned High Court 
of Sindh in Constitution Petition No. 1207 of 2004 is set aside. No order as 
to costs.  
      
 
 
 
 
 
 
 
 
J. 
 
      
 
 
 
 
 
 
 
 
J. 
 
Islamabad,   
 
 
 
 
 
 
J. 
24.02.2015. 
 Irshad Hussain /* 
 
 
 
 
 
APPROVED FOR REPORTING.