' WAHID BUX BROHI, J.--- The Constitutional Petitions Nos.D-1084 of 1992 and D-3007 of 1992 are being disposed of by this common order as they involve common questions of law and facts. C.P.
No,D1084 of 1992
2. The petitioners in C.P. No,D-1084 of 1992 are residents of Block-8, K.D.A. Scheme No,5, Clifton, Karachi and are owners of their plots. According to them, K.D.A. Scheme No,5 including Block-8 was designed exclusively for residential purposes with no high-rise building except in specified areas shown in the plan for Block-8, but Messrs Tameer-e-Mashriq (Pvt.) Limited, respondent No,6 acquired a plot of land in Block-8 bearing No,ST-H-1 admeasuring 4729.66 sq.Yds. On 16-11-1984 through auction purchase for clinic-cum-commercial use. The allotment was approved by the governing body of K.D.A., respondent No,2 in its meeting held on 21-2-1985. The plot was subsequently converted to G.C. Category on 14-10-1987 allegedly, without inviting public objections and processing the case in the relevant department. Subsequently, GC Category Rules were made applicable to the plot in question on 24-12-1987.
3. As regards construction of building, the Karachi Building Control Authority (K.B.C.A.), respondent No,1, granted permission to respondent No,5 Messrs Hussain Developers on 7-6-1988 for two storeys in addition to the permitted storeys covered by GC Category Rules, which according to petitioners, was not only contrary to the GC Category Rules, but also against standard plan of K.D.A. And K.B.C.A., respondents Nos.2 and 1 respectively.
4. The respondent No,6, however, obtained N.O.C. For sale and advertisement from Government of Sindh, respondent No,3, but on 14-8-1990 the Government of Sindh cancelled all the permissions and N.O.Cs. Obtained invalidly, allowing 30 days' time to developers to file appeals. On appeal permission was granted for commercialization of the plot with ground plus five storeys as permitted in GC Category plots. Subsequently, the Chief Minister, Government of Sindh restored the building plan approved by K.B.C.A. Vide order, dated 27-11-1991 allowing thereby ground floor plus 1/3rd mezzanine floor plus two shopping floors, two parking floors and five floors for residential flats.
The building is now named as Gulf Ways.
5. The petitioners took exception to all this and steered a protest on the ground that their privacy would be violated besides, putting strain on the services including choking of sewerage line, shortage of gas, water and electricity. Ultimately, they filed this Constitution petition on 14-5-1992, inter alia, on the grounds that permission granted to the respondent No,5 by respondents Nos.1 to 4 for carrying out high-rise multistoried building consisting of ground plus 9 floors, that too on an amenity plot was beyond their authority and power and was illegal, being in contravention of the relevant laws viz. K.D.A. Order, 1957, Sindh Buildings Control Ordinance, 1979; and Karachi Town Planning and Building Regulations, 1979. Furthermore, the lay out plan, once approved by respondent No,1, could not be altered or modified without inviting objections as envisaged in the aforementioned Order/Ordinance/ Regulations. Besides, the construction was being carried in excess of plot ratio and the compulsory open space was also being covered. It was also alleged that the petitioners' Constitutional rights of privacy and enjoyment of property had been contravened.
6. The petitioners sought relief in following terms:-
(a) In the interest of justice this Honourable Court may be pleased to direct the respondents Nos.1 to 4 to carry out their statutory duties and in performance of the same restrain the respondents Nos.5 a'nd 6 from constructing multistoreyed building ground + 9 storeyes and after ejecting the said respondents Nos.5 and 8, their employees and agents from the plot to demolish the illegal and unauthorized construction raised thereon in excess of the plot ratio, construction over the compulsory open space which is contrary to the original terms of allotment as stated in para. 3 above;
(b) to cancel the lease of the respondent No,8 for having illegally permitted the respondent No,5 in constructing the illegal multistoreyed commercial building contrary to the Ordinance and Regulations, 1979;
(c) it is further prayed that the respondent No5. Be prohibited from raising construction contrary to law and the legal rights of the petitioners and to allow this petition with costs;
(d) any other relief deemed appropriate may also be granted.
7. The petitioners later on discovered that the respondent No,4 had approved construction of basement plus ground floor plus mezzanine (1/3 of the shopping area) and five floors besides, construction of a parking floor. They also noticed that the building constructed by respondent No,5 was in contravention of the plan approved by respondents Nos.1 and 4. Consequently, on 24-11- 1992 an amended petition was filed wherein new developments were highlighted specially alleging therein that the respondent No,1 was carrying out the work day and night to raise the high-rise building and had been able to go upto six storeys.
8. Again, an amended petition was filed on 22-8-1995, inter alia, adding that respondent No,4, on 26-3-1994, approved the construction of "Gulf Ways" and "Cliff Tower" (subject-matter of C.P. No,D- 3007 of 1992) proposed to be constructed by respondents, despite the fact that respondent No,4 had no power to change the land use or revise the approved plan, once granted.
C.P. No,D-3007 of 1992
9. The Constitutional Petition No,D-3007 of 1992 was filed on 2-12-1992 by 9 petitioners, out of whom 7 petitioners are common in both these petitions. The subject-matter of this petition is a residential Plot No,G-1 measuring 3750 sq.Yd. Situated in K.D.A. Scheme No,5, Kehkashan, Clifton, Karachi (Site for Cliff Towers). According to petitioners the plot in question was commercialized and converted into GC Category somewhere in May, 1981, by K.B.C.A. And K.D.A. (respondents Nos.1 and 2, without complying with the mandatory formalities required under the K.D.A. Order. It is the case of petitioners that although the land in these. Blocks fell within the working of Clifton Cantonment Board, the respondent No,5, yet, Karachi Building Town Planning Regulations, 1979 continued to be applicable.
10. As regards the construction, the K.B.C.A., respondent No,1 accorded approval through their letter dated 14-7-1990 for construction of high-rise building "Cliff Towers", comprising basement, ground, 1/3 mezzanine plus 9 storeys. Subsequently, the respondent No,1 cancelled the building plan on 16- 8-1990 pursuant to an order passed on 14-8-1990 by the Government of Sindh, but on appeal the Additional Chief Secretary to Government of Sindh directed the K.B.C.A. To reprocess the case in the light of findings recorded in the said order.
11. Aggrieved by the cancellation of N.O.C. Messrs Hussain Developers, respondent No,5 filed a Constitutional Petition No,D-840 of 1990 on 30-8-1990 without joining the Clifton Cantonment Board, respondent No,4 as a party. In the meantime, as a result of reprocessing the case Messrs Hussain Developers were permitted by the K.B.C.A. To construct ground plus mezzanine and 5 storeys only. It is pointed out by the petitioners that in fact, in the year 1990 Messrs Hussain Developers had also applied to the Clifton Cantonment Board and their building plan was approved for ground plus 5 storyes with 1/3rd mezzanine floor, but subsequently, on 31-5-1992 they applied for regularization (assessm ent) of their own plan which was declined. The respondent No,5, nevertheless, advertised sale of the units in the building and started construction. According to petitioners, the construction was in contravention of the rules as far the compulsory open space was concerned. They also pointed out the violations in the construction. The petitioners further alleged that raising of the building would affect their privacy and access to light and air, besides, aggravating the sewerage and traffic problem and increasing pollution and causing further shortage in the supply of water, gas and electricity in the locality. Through this petition they prayed for the following reliefs:--
(a) to compel respondent No,2 to cancel the lease/title acquired by respondent No,5 in constructing the illegal multistoreyed commercial building contrary to the K.D.A. Order No,5 of 1957, Ordinance and Regulations, 1979 and Rules of natural justice as stated in paras.4, 8, 9 and 10 of the petition;
(b) to direct the respondents Nos.3 and 4 to carry out their statutory duties and Regulations and in performance of the same restrain the respondent No,5 from constructing the multistoreyed building ground plus 9;
(c) to direct respondents Nos.l and 4 to eject respondent No,5, his employees and agents and thereafter to demolish the illegal and unauthorized construction raised thereon in excess of the plot ratio, construction over the compulsory open space;
(d) that the respondent No,5 be prohibited from raising construction contrary to law and the legal rights of the petitioners;
(e) any other relief deemed appropriate may also be granted;
(f) costs of the petition.
12. We have heard learned counsel Mr. Naimur Rahman for petitioners; Mr. Anwar Ali Shah for respondent No,1; Mr. Ahmed Ali Pirzada, Additional Advccate-General, for respondent No,3; Mr. Umer Qureshi for respondent No,4; and Mr. Kh. Shamsul Islam for respondent No,5 in both petitions and for respondent No,6 in C.P. No,D-1084 of 1992 and with their assistance perused the material on record.
13. Mr. Naimur Rehman learned counsel for petitioners contended that in both these petitions, the approval of plan for construction of multistoreyed/high-rise buildings was contrary to terms of lease. The construction so far raised was also against the approved plan. He contended that no public notice was issued before modification of the scheme, thereby violating Article 52-A of K.D.A.
Order as it then stood. He argued that Blocks 8 and 9 of Clifton were transferred by Federal Government to Clifton Cantonment Board through Notification dated 2-3-1983 declaring them as Clifton Cantonment, therefore, those Blocks were covered by Cantonment Act, 1924 except what is held by the Honourable Supreme Court in the case of Pakistan through the Secretary, Ministry of Defence v. Province of Punjab PLD 1975 SC 37 that is to say the law of Provincial Government would apply where no Federal Law is applicable. According to him, K.D.A. Order would apply in the instant case. He also referred to the decision of this Court in Messrs Zeshan Builders v. Karachi Building Control Authority 1992 M LD 2259, wherein it was held that building control would be regulated under the Cantonment Act, 1924 and Provincial Law was not applicable to it. He argued that the Provincial law on the subject would not be applicable to the building erected or intended to be constructed on a plot situated within territorial limits of Cantonment Board concerned, therefore, K.B.C.A. Had no control in the matter of approval of building plan.
14. In the alternative he submitted that no doubt K.D.A. Order provided for floating of a scheme but it, was for the Building Control Authority to see that the building was properly constructed; and so also it was vested right of every lessee that any construction in the scheme should be strictly followed in accordance with law/Rules. He submitted that as per observations made in Suleman Mala v. Karachi Building Control Authority 1990 CLC 448 every permanent citizen had interest in such a matter. He referred to the rule laid down in Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223, Zahid v. State PLD 1993 Kar. 237; Excel Builders v. Ardeshir Cowasjee 1999 SCM R 2089; Costa Livina's case 1999 SCM R 2883 and Abdul Razak v. Karachi Building Control Authority PLD 1994 SC 512.
15. He further pointed out that the Cantonment Board at one stage through their letter dated 4-1- 1992 objected to the construction beyond 5th floor, but subsequently approval was accorded by the Board on 20-3-1994 against the law. He urged that it was against the spirit of the order passed on 17-2-1993 and that it was without knowledge of the petitioners. He further emphasized that the amenities to be enjoyed by the residents could not be divided and a development scheme could not be changed or modified to the detriment of residents. In this context he relied on Shehla Zia v.
WAPDA PLD 1994 SC 693, Khalil Jute Mills Limited v. United Bank Limited 1994 SCM R 512, Asghar Ali Khan v. Returning Officer 1999 CLC 565 and Excel Builders v. Ardeshir Cowasjee 1999 SCM R 2089.
16. Mr. Khawaja Shamsul Islam, learned counsel for respondents Nos.5 and 6 contended that the petitions suffer from laches as the purchase was made in 1984 and the allotment was made on 19- 1-1987 while the petition was filed in the year 1992 after a period of five years. There is no explanation for such a long delay in filing the petition, as such, on this ground the petition is liable to be dismissed. He argued that once the lease is granted it cannot be cancelled as contemplated under section 39 of the Specific Relief Act, moreso when it is a registered deed, the intervention of Civil Court is the only course available. He further urged that the Property bearing No,ST-H-1 is `commercial' right from the beginning and it was never an amenity plot and even the allotment order, dated 19-1-1987 described it as Commercial Plot No,H-1. Relying on the letter dated 23-5-1992 of the Clifton Cantonment Executive Officer in respect of building Gulfway Towers on Plot No,H-1 comprising basement, ground floor, mezzanine and five floors, he submitted that Block No,8 is under the Clifton Cantonment, and the Cantonment Executive Officer, by letter, dated 4-1-1992, granted permission to the respondent No,5 Messrs Hussain Developers for building Cliff Tower on Plot No,G-1 for basement, ground floor, mezzanine (1/3rd of shop area) and 5th floor with additional permission for advertisement of the project. In this context he pointed out that an appeal was filed whereupon an order was passed on 29-5-1994.
17. As regards other legal points, raised by learned counsel for the petitioner, he argued that most of these legal issues have been settled exhaustively. He relied on Excel Builders v. Ardeshir Cowasjee 1999 SCM R 2089 read with Ardeshir Cowasjee v. Government of Sindh 1998 M LD 1219, which was followed in Century Links Development Corporation (Pvt.) Limited v. Karachi Cantonment Board PLD 2000 Kar. 50, Ali Asghar v. Creators (Builders) 2001 SCM R 279, Kausar Musa Jee v. Niaz Ahmad 2000 SCM R 1823 and Ardeshir Cowsjee v. K.B.C.A. 2002 CLC 673.
18. Mr. Umer Qureshi, learned counsel for Clifton Cantonment Board respondent No,4 submitted that in the year 1992 Blocks 8 and 9 of Clifton were transferred to Clifton Cantonment Board for the purpose of approval of building plans, but the violations whatsoever mentioned in the petition are in respect of K.D.A. Order and not against approval of Clifton Cantonment Board, therefore, the latter is not concerned with the subject-matter. Regarding allegation in para.24(i) of the amended Petition No,(C.P. No,D-1084 of 1992) he explained that nothing has been expressed as to what specific action was required to be taken and no illegality has been pointed out in this regard. He added that in the said clause the petitioners were unscrupulously expecting the respondent No,4 to take action against autonomous bodies. He argued that even if a plot is wrongly allotted the Cantonment Board is not concerned with such issue. He asserted that the main Clifton Road has been declared commercial and high-rise buildings have been allowed and there is no restriction in law about the height, the petition is, therefore, not maintainable. He was of the view that calling for demolition of the building is unwarranted for, a demolition can only be ordered by the Cantonment when there is violation of approved plan. He relied on Excel Builders v. Ardeshir Cowasjee 1999 SCM R 2089, Ardeshir Cowasjee v. Government of Sindh 1998 M LD 1219 and the recent judgment of this Court in C.P. Nos.D-294 of 1998.
19. Mr. Ahmed Pirzada, learned Additional Advocate-General, Sindh submitted that the entire area where the subject-matter falls is commercial and referring to letter, dated 18-1-1992 of K.B.C.A. He contended that the cancelled approved plan has already been restored and the petition is liable to be dismissed. At the best, the Court could direct removal of violations.
20. Mr. Anwar Ali Shah, learned counsel for K.B.C.A., respondent No,1 also referred to the last mentioned letter dated 18-1-1992 of K.B.C.A. And explained that on 11-11-1992 handed over jurisdictional charge to Clifton Cantonment Board under resolution dated 11-1.1-1990 of the Governing Body and the Clifton Cantonment Board approved the construction plan separately on 20-3-1993. However, according to him, there are some violations in the construction for which notices were issued to Messrs Hussain Developers, respondent No,5 on 13-1-1992, 18-1-1992, 11-3- 1992 and 28-3-1992. He stated that at present basement, ground, mezzanine and seven upper floors are in existence, out of which, ground and mezzanine floors/shops are occupied, while the upper floors are vacant. He submitted that further details can be given by the Cantonment Board.
21. On a comprehensive analysis of the contentions raised on behalf of the petitioners which were controverted equally in the light of legal decisions and particularly in view of pronouncement of the Honourable Supreme Court, it is manifest that the major issues touching the controversies in question have been settled by the Honourable Supreme Court in the authorities invariably cited by the learned counsel for parties on both sides. The decisions of this Court in various petitions including Muhammad Hanif v. Samina Sibtain C.P. No,D-1153 of 2003 and Captain Muhammad Aslam v. K.B.C.A. And others C.P. No,771' of 2004 are also relevant on the subject-matter in question.
Additionally, the categorical statement of Mr. Umer Qureshi, learned counsel for Clifton Cantonment Board that the main Clifton Road has been declared 'commercial' and the high-rise buildings have been allowed and that there was no restriction in law about the height of such buildings provided a set back to the case of petitioners. So also the statement of learned Additional Advocate-General on behalf of Government of Sindh that the entire area where the subject-matter falls is commercial and the cancelled approved plan has been restored militates against the petitioners' case. In this context, it would not be out of the place to refer to a list of high-rise buildings which was submitted during the course of arguments. The factual position was also not rebutted on account of hard realities. The list includes the following buildings on the main Clifton 200 ft. Wide Road and other roads in Clifton:--
1. Ashiana Ground + 13 floors
2. Al-Hiras Shangrila G + 9
3. Rimpa Consachon G + 9
4. Mansoor Tower G + 9
5. Colombus Tower G + 9
6. Bridge View G + 9
7. National Bank of Pakistan G + 7
8. Yousuf Grand Square G + 6
9. Bridge Apartment G + 6
10. Continental Trade Centre G + 5
11. Quality Arcade G + 5
12. Deen Arcade G + 4
(2) Main Clifton Road (IChayaban-e- Iqbal
1. P.S.O. House G + 12
2. Prince Complex G + 9
3. Mehran Heights G + Mez + 6
4. Hamilton Court G + Mez + 6
5. Clifton Centre G + Mez + 6
6. Quality Heights G + 6
7. Al-Habib Arcade G + 6
8. Clifton Pride G + 6
9. Chappal Bright G + 6
10. Kehkashan Centre G + 5
(3) Clifton Block - 5 (Khayaban-e- Roomi)
1. Hassan Terrace G + 10
2. Pearl Heaven G + Mez + 9
3. Hanging Garden G + 9
4. Clifton Belle View Apartment G + 9
5. I.B.A. Apartment G + 7
6. Sea Breeze Centre G + 6
7. Hashoo Terrace G + 5
(4) Clifton Block-2 (Shahrah-eSaadi)
1. Bon Vista G + 15
2. Sea Cliff G + 13
3. Marine Drive G + Mez + 11
4. Hawai Homes G + 10
5. Hashmat Ali Flats G + Mez + 7
6. Sea Breez F1-1 G + Mez + 7
7. Cornich Residents G + Mez + 7
8. Palm Beach Homes G + Mez + 7
9. Paradise Centre G + 7
10. Clifton Condom G + 7
11. Marine Heights G + 7
12. Jaisons Coastal View G + 5
22. Irrespective of existence of the above buildings it is the case of petitioners that basically with respect to the subject-matter in question, namely the buildings Gulf Ways and Cliff Tower there is no justification for upsetting the Scheme and converting the plots from residential to commercial and that the fundamental rights of the citizens (petitioners) such as amenities etc. Will be seriously jeopardized, therefore, these buildings shall be deemed to have been constructed illegally and may be demolished.
23. As pointed out in the foregoing para., the main issues directly related to the aforesaid controversies have been decided by the Honourable Supreme Court and indeed the observations made in Glass Towers' case Excel Builders v. Ardeshir Cowasjee 1999 SCM R 2089 circumscribe the cardinal questions, involved in these cases wherein the matter related to a residential plot situated on main Clifton Road. From the facts of the cited case it transpires that the Governing Body of K.D.A., by resolution, accorded commercialization of various Karachi Housing Schemes against payment of conversion charges. The resolution included Scheme No,5 Clifton also. In pursuance of the said resolution, a number of buildings on the main Clifton Road (Sir Abdullah Haroon Road) were commercialized from time to time and multistoreyed commercial buildings were raised.
Messrs Excell Builders got a plan approved for the building 'Glass Towers' and started construction, but since there were deviations K.B.C.A. Issued notices to them for demolition which was resisted through a suit filed in this Court. Subsequently, the residents filed Constitution petition in this Court alleging, inter alia, that the approval of the plan was accorded contrary to development scheme and without reference to amenities and infrastructure available in Frere Town Quarters. The petition was resisted inter alia, on the ground that the residents had no locus standi and maintainability of the petition was also questioned, but these pleas were repelled by this Court. It was also observed by this Court that the building in the cited case (Glass Towers) was not the first multistoreyed structure and that the K.M.C. Was authorized to permit its conversion, but however, said petition was allowed to the following extent:-- "We, therefore, direct that such portion of the said structure of Glass Towers constructed along and facing the Clifton Road as may obstruct the future expansion of that road to the proposed width of 150 ft. In front of the said building, will be demolished and for purposes of identifying with exactness the portion to be so demolished we direct the respondent No,6 to determine the same on due measurement."
24. The Honourable Supreme Court also dismissed the appeals filed against the said order observing as under:-- "Though we are of the view that the judgment under appeal does not call for interference by this Court. However, we would like to add that simpliciter the fact that the conversion of a residential plot on a main road into commercial plot is warranted on account of the change in the situation would not justify the violation of any provision of, any law or building bye-laws or regulations, nor it would warrant grant of permission for a high-rise building having 17/18 floors. The Government, or the Authority concerned is under obligation to decide the question of number of floors keeping in view the extent of availability of utility services like water, electricity, gas. Sewerage lines, streets and roads in the locality involved and the permission for construction of a proposed building should be of minimum floors, which may cause minimum inconvenience and discomfort to the residents of the locality."
25. Quite obviously, the point of locus standi of the .Residents in filing a petition has been dealt with fully as above, yet it would be beneficial to refer to the Costa Livina's case reported as Aredshir Cowasjee v. Karachi Building Control Authority (K.M.C.) 1999 SCM R 2883, wherein the Honourable Supreme Court, after taking into consideration the principles laid down in a number of authorities observed that the appellants had right to use the park with all amenities as was envisaged under the approved K.D.A. Scheme No,5 and that the appellants had sufficient interest to ensure that the plot should not be used for any other purpose than for which it was carved out.
26. On the point of locus standi we are convinced that the petitioners, being residents of the locality, whose dwelling places are situated just near the questioned buildings 'Gulf Ways' and 'Cliff Tower' and they have sufficient interest to ensure that the plot in question in the instant, case should be used in accordance with law, they have locus standi to prosecute their cause through Constitution petitions. The contention in this regard, being technical in nature, is without merits and is repelled.
27. Mr. Kh. Shamsul Islam, learned counsel for respondents further took the plea of laches and contended that the petitions were filed after a long delay of about 5 years, after conversion of plot into commercial and approval of the plan for raising a building, the petitions, therefore, are liable to be dismissed. Law on this point is well-settled. Laches per se would not bar filing of a Constitution petition, nor would the laches be weighed in the scales of Limitation Act, 1908. The question of delay or laches is to be considered with reference to the facts of each case and delay/laches can be overlooked in a Constitutional petition if the facts of the case and dictates of justice so warrant.
Reference in this context be made to Costa Livina's case 1999 SCM R 2883 and Ardeshir Cowasjee v.
Multiline Associates PLD 1993 Kar.
237.
28. As regards question of conversion of the questioned plots into commercial, this issue seems to be a closed chapter. In view of what has been stated in the instant petitions as also from the facts stated in Excel Builders' case 1999 SCM R 2089 which relate to Glass Towers, a building situated near the buildings/plots which are the subject-matter of these petitions, the commercialization of plots on main Clifton Road was permitted by way of a resolution passed by the governing body of Karachi Development Authority and the process of commercialization of residential plots commenced from the year 1980 and onwards, as a result whereof a large number of plots in the vicinity on main Clifton Road stood commercialized. As observed by the Division Bench of this Court in Excell Builders' case and further reflected in para.21 of this judgment by now a number of multistoreyed structures have been raised on main Clifton Road. Even from para.18 of aforesaid judgment of Honourable Supreme Court it transpired that conversion of residential plot on main road into commercial plots were not found to be a questionable act. It was only observed that the Building Bye-Laws, Regulations etc be not violated.
29. As similar question on the point of commercialization as involved in the instant petitions, came up before this Court in Ardeshir Cowasjee and others v. Clifton Cantonment Board and others C.P.
No,D-294 of 1998 in respect of Plot No,G-6, Block-8, K.D.A. Scheme No,5, Clifton Karachi wherein too, the Division Bench of this Court observed as under:-- " Admittedly, the plot in question is situated on main Clifton Road which has been declared as commercial as back as 11-5-1980 through Resolution No,22. There is no fault on the part of respondent No,9 for applying conversion of the plot from residential to commercial as in the vicinity the conversion of the plots on the main Clifton Road have been found to be lawful. "
30. In the instant petitions, admittedly, the first order in the series was passed on 16-11-1984 when the plot of Gulf Ways (ST-H-1) was acquired through auction purchase. Again, it was converted to GC Category on 14-10-1987 and soon thereof the GC Category Rules were made applicable to the plot where after even permission was granted for two additional stories. In the year 1990 N.O.C. Was granted by Government of Sindh for sale and advertisement which order was once withdrawn, but again the building plan approved by K.B.C.A. Was E restored allowing thereby ground floor plus 1/3rd mezzanine floor plus two shopping floors, two parking floors and five floors for residential flats.
During this entire period the residents kept quiet and filed the petition on 14-5-1992 and by now the building are occupied to some extent and a market is being run continuously. Third party interest has already been created. It seems now, it is too late in the day to question the act of commercialization of the plots in question. Thus, the belated prayer that the lease granted in favour of the private respondents be cancelled is neither justified nor reasonable.
31. Similarly, in case of the building Cliff Tower the plot was commercialized and converted into GC Category in the year 1981, but the petition was filed on 2-12-1992. Thee K.B.C.A. Had also accorded approval for construction in the year 1990 and although at one stage the building plan was cancelled, but on appeal the same was restored. In that case too, the residents remained unconcerned for quite a long time. In the same manner the prayer for cancellation of lease would turn to be unjustified and too technical.
32. It was ultimately contended by Mr. Naimur Rahman on the basis of. Allah Rakha's case 2003 SCM R 1756 that the right of life is to be protected and that the interest of public-at-large shall prevail over the interest of an individual if the two are in conflict. In the cited case the question involved related to width of main entry/exit gate leading to the market in question which had been curtailed and thereby it resulted in tremendous difficulties for the public-atiarge. The facts are distinctly distinguishable as compared to the case in the instant petitions. As regards the other authorities cited by learned counsel for petitioners, needless to observe that each case revolve around its own facts and circumstances, the observations made in those precedents would not necessarily lead to a conclusion that commercialization of the plots on main Clifton Road shall be undone in respect of these two plots only, particularly when the construction has reached at advanced stage and market occupied by shopkeepers, is functioning for last many years.
33. However, there are some significant objections on behalf of the petitioners that the buildings are being constructed in violation of Rules. It was pointed out, during the pendency of these petitions, that the site has been inspected frequently. There is also a report of K.B.C.A. Pointing out certain deviation from the approved plan. There is no doubt about the legal position that construction in disregard/violation of Rules/approved plan cannot be permitted. To that extent the prayer in the petition is fully justified.
34. Consequently, the petitions are allowed to the extent that construction raised on the disputed plots in violation of the approved plan shall be removed by the competent authority and such portion shall be demolished keeping 'in view the safety of those who are already in occupation of ground floor etc. Since the K.B.C.A. Has already pointed out certain deviations and irregularities the same shall be H removed and such report should" be furnished to'. The Court within 3 months.
Further construction should be monitored ensuring that it is raised only in accordance with the approved building plan on both plots. Petitions stands disposed of in above terms. Parties shall bear their own costs.