1. ' S. ALI ASLAM JAFRI, J.---The petitioners Nos.1 to 5 who claim to be public spirited citizens of Karachi having interest in preserving of natural and built environment of the city, in ensuring that buildings are constructed in accordance with law and regulations so that fundamental Constitutional "right of life" of all citizens.,is not violated, including petitioners Nos. 6 to 8 who are neighbours, are aggrieved of the construction of a building "World Trade Centre" on plot bearing No,FL-10/5, K.D.A.
2. Scheme No,5, Khayaban-e-Roomi, Clifton, Karachi. Their grievance is that respondent No,4 is raising a construction on the above referred plot which was meant for residential purposes, in violation of the rules and regulations by increasing the plot ratio from 1:2.3 to 1:3.5 even by elimination of the compulsory open space on all the sides for use of entire W.T.C. Building as commercial, and construction of a basement at the rear of the plot attached.
3. ' It is contended that the plot in question was planned by K.D.A. As a residential flat-site and according to the K.D.A. Zoning Regulation, 1972 as applicable, the built up area of the plot ratio should be 1:2 and compulsory open space (COS) all around of 6 meter (20 feet), with permission to use 7.5% of the total built-up area as commercial shops on the ground floor. The plot in question was allotted in 1972 by K.D.A. To Hassan Associates, a developer/builder who constructed a ground + 10 floors + penthouse structure named "Has an Terrace" comprising 40 flats, 2 penthouses, and some commercial shops on the ground floor. Such construction was approved by K.D.A. In 1974 and again in 1978.
4. ' It is further contended that in the year 1988 respondent No,4 Shah Feroz of Grand Liesure Corporation (GLC), acquired the residential apartments project ' and applied to the K.B.C.A. For conversion of the project into a fully commercial building called, World Trade Centre (WTC), with increase in plot-ratio to 1:3.5 and elimination of the 20 feet COS all around. The said application was turned down by KBCA being in gross violation of the Ordinance, the Regulations 1979 and the applicable Zoning Regulations. However, in 1989 respondent No,4 applied to the Minister for Housing and Town Planning (Mr. Agha Siraj Durrani) against whom certain allegation of corruption have been made by the petitioners, for permission to convert and construct in violation of law, and for the reasons best known to GLC and the Minister, the rejection by the KBCA was overridden and permission was granted unlawfully "as a special case" and "in relaxation of rules". In support of such contention documents annexed with the petition as 4(a) to 4(d) have been filed by the petitioner. It is alleged that after obtaining formal approval from respondent. No,1, GEC undertook partial additional construction including some sections of COS on the ground floor. However, in 1990 after the change of the Government, the approval accorded to 61 highrise/multi-storeyed building all over Karachi, including WTC, were cancelled by the Government. All efforts by GLC to have the 1989 KBCA NOC restored did not succeed and they were able to have an order of retention of existing building without any increase in plot ratio from the Additional Chief Secretary of respondent No .
5. 2.
6. ' The petitioners have further contended that in the year 1992 during the period of the then Chief Minister Jam Sadiq Ali the petitioners again applied for restoration of illegal 1989 NOC for commercialization, excess plot-ratio and coverage of COS which was done as appears from Annexures 4-E and 4-F which are photocopies of the summary submitted to the Chief Minister and orders passed thereon. The respondent No,4 thereafter completed construction in the COS at the front and sides of the project by increasing plot-ratio up to 1:2.3 by constructing about 22,0000 sq.
7. Feet extra. However, the rest of the construction at the rear of the ground floor and upper floor was not undertaken and according to the petitioners, the building plans approved by respondent No,1 consequently lapsed. Even the requisite "occupancy certificate" or "completion certificate" was not obtained before inducting occupants, contrary to section 6(3) of the Ordinance. Again in 1997, GLC applied to respondent No,1 for approval of new/revised (but illegal) building plans, but it was not able to have them approved because the working of the KBCA at that time was under close scrutiny by various concerned citizens, professionals and NGOs, and the Government of Sindh had passed an administrative order on 20-7-1998 directing that no relaxation in plot-ratio was to be allowed on any plot in Karachi under any circumstances.
8. ' The petitioners further contended that on 29-3-2001 after the take over of the Military Government, the Governor (Muhammad Mian Soomro) initiated a so-called "Programme for the Economic Revival of Karachi" (PERK) and appointed respondent No,4 Shahid Feroz as Vice-Chairman who as such acquired a new political clout in the administrative systems of the province. A press clipping from daily DAWN Karachi dated 30-3-2001 has been filed as Annexure '5'. In June, 2001 the respondent No,4 submitted a new building plan to respondent No,1 showing the entire WTC building as commercial; increase in plot-ratio to ambit 1:3.5 (although the covered area figures shown on the drawing are erroneous); elimination of the COS on all sides; and construction of a basement at the rear of the plot. Copies of four final revised plans have been filed as Annexure '6'. However, after much debate between respondent. No,1 and KDA Master Plan, and Environmental Control (MPEC) the new unlawful building plans were illegally approved in late March, 2002 in violation of the order, the Ordinance, the Zoning Regulation, the Regulations 1979 and Regulations 2002, so also in contravention of the administrative order dated 20-7-1998 of respondent No,2. The construction thereafter recommenced in April, 2002, despite complaints sent by the petitioners to respondent No,1 which were turned down on a number of times by KBCA and the Government.
9. ' The case of the petitioners is that in the city of Karachi all changes, planning and zoning of area scheme like KDA Scheme No,5, Kehkashan, Clifton, Karachi are by law required to go through a process that mandates technical justification of proposed change, including impact on the infrastructure, amenities and utilities in the locality; invitation and consideration of public objections to the proposed change/conversion, and approval by the MPEC Department of KDA. The said procedure has not been followed while granting permission to the respondent No,4.
10. ' The grievance of the petitioner is that unlawful construction will have (and is already having) an adverse effect on the environment of the locality, it will impose unbearable load on the infrastructure viz. Parking, roads, traffic, garbage-collection etc. And amenities such as park, police stations etc. And utilities viz. Electricity, water, sewerage, gas. Sketch of data giving a comparative of the actual requirements of the project 'under various conditions has been filed as Annexure-10 whereas photographs showing the existing traffic chaos around World Trade Centre before the excess area in the new first floor and rear ground floor is built have been filed as Anexure-11 whereafter the over built commercialized structure will exacerbate the overloading of infrastructure/amenities/utilities and congestion of roads/traffic.
11. ' It is urged that so-called "relaxation of rules" cannot be made by public functionaries like ministers and bureaucrats as it amounts to flouting of the law. The construction being in blatant violation of all relevant law, rules and regulations has been sought to be declared to be illegal, void ab initio and a nullity in the eye of law. A direction has been sought for demolition of the construction raised being in excess of 1:2 plot ratio. By way of interim relief the petitioners have prayed that respondents be restrained from raising any further construction or parting with the possession of the area already raised or creating any third-party interest. A restraint order has been sought against KBCA for issuing any regularization approved plans, "NOC for Sale" or "occupancy certificate" in respect of the building raised by respondent No,4. Petitioners have also prayed for a direction to respondents Nos.1 and 2 to institute criminal prosecution proceedings against the builder and colluding politicians/ministers and Government/KBCA officials for their alleged corruption and fraudulent action as disclosed in the petition.
12. ' After service of notices counter-affidavit to the petition has been filed by Khalid Feroz, Director of respondent No,4, denying the allegations made in the petitioner and stating that respondent No,4 is a private limited company which owns Plot No,FL-10/5, KDA Scheme No,5, Khayaban-e-Roomi, Clifton, Karachi, where construction has been raised as per law, rules and regulations. It is stated that petitioners particularly petitioner No,2 are in habit of filing frivolous petitions to harass the builders as a result of which the construction activity in the entire town has come to a stand still.. It is alleged that petitioner No,1 patronizes petitioners Nos.2 and 3 by utilizing print madia. He writes article in daily DAWN to blackmail in particular the builders of private enterprises, and no construction activity in the whole of town is allowed unless Ronald D'Souza is engaged as consultant and this is a way SHEHRI mints money. Preliminary objections have been taken by stating that petition is misconceived as it has failed to implead many of the persons against whom the relief has been sought; petition requires factual inquiry into the issues raised therein and unless the evidence is recorded no findings of the nature sought in the petition could be given; and the petition is barred by laches as well. It is also stated that existing building is being restructured with the approval of the competent authority and the petitioners have no locus standi to challenge and/or question such restructuring of the building. The case of the petitioners as discussed above has been denied in toto. It has been stated that plans were submitted before the competent authority, which have approved the same and increased the plot ratio from 1:2 to 1:3.5. Copy of letter dated 4-9-1989 from KBCA along with approved drawing for full commercial and additional construction have been filed and marked an Anenxure 'C' to the counter-affidavit. It is not denied that initially KBCA did not accede to the request of respondent No,4 but the stand of the KBCA was subsequently undone by the competent authority on representation of the respondent No,4. It has been denied that minister of Pakistan Peoples Party permitted conversion and construction of the said premises as alleged by the said petitioners. Different documents filed by petitioners which include summary reflect that it was en-routed according to the procedure provided in law and thereafter the competent authority in KBCA passed appropriate orders for commercialization in terms of the provisions of KDA law and for approving the additional construction as per law. It is contended that the allegations against the minister named by the petitioners cannot be looked into as he has not been impleaded as a party in the petition. It has not been denied that the approved plan of the premises in question was initially cancelled but it has been clarified, that it was due to some misconception on the part of authority concerned. Subsequently on the representation of the respondent No,4 cancellation order was withdrawn by the Government. It has been denied that Additional Chief Secretary reduced the plot ratio from 1:3.5 to 1:2 while recommending withdrawal of the cancellation order. It has further been urged that it is irrational, that ,once the plot used is changed from residential to commercial, the plot ratio is increased in terms of the provisions of the relevant law and any administrative order has no applicability to undo a law. In any case respondent No,4 was communicated that competent authority has lawfully withdrawn the cancellation order dated 2-1-1992. Copy has been filed as Annexure 'D'. It has been denied that respondent No,4 has raised and/or raising construction in violation of the approved plan either in compulsory open space or otherwise. It has been stated that under the provision of regularization, once the plot use is changed from residential to commercial, the provisions with regard to compulsory open space as provided for FL site would not extend to the commercial plot. The present premises on which the construction has been raised is open to all the four sides and has no plot on any of its sides. Construction has been raised according to approved plan, as such allegations regarding violation are false. No breach of approved plans has been committed. The approved plan is well within the plot ration of 1:3.5. The respondent No,4 has not applied for obtaining occupancy certificate or completion certificate as there is no occasion for the. Same unless the building is entirely restructured. The entire premises is otherwise owned by respondent No,4 and the project of the nature which is being sold. It has been denied that the plot ratio was sought to be increased by approaching KBCA in 1991. Appointment of Mr. Shahid Feroz who was Director of respondent No,4 from 1988 to 1996 as Vice-Chairman of PERK has not been disputed and it is alleged that it is due to personal grudge of the petitioners, with him that such false allegations have been made though he had no role to play and never misused his position.
13. The permission granted to respondent No:4 is strictly, in accordance with law and rules. It has been categorically pleaded that entire locality of Clifton qualifies for commercial use in view of the resolution which the governing body of the KDA has passed and the said resolution has not been withdrawn till date and holds the field. Under the law any party interested in change of use of the land can approach the KDA for commercialization subject to the prescribed fee provided in the said resolution. Copy of the resolution -has been filed and enclosed as Annexure'H & I'. The respondent No,4 has, therefore, prayed, for dismissal of the petition being frivolous and vexatious.
14. ' Affidavit-in-rejoinder has been filed by Dr. Raza Ali Gardezi one of the petitioners reiterating the facts as stated in the petition. Denying the allegations made by respondent No,4 against some of the petitioners. Violaton in construction has been pointed out with reference to utilization of 'area in excess and it has been denied that the "Clifton area is itself commercialized". It has been urged.
15. That Resolution No,215 dated 18-11-1990 of Governing Body of KDA is not a law, and the alleged "Competent Authority" has no powers to relax regulations by permitting the construction on the said plot on the basis of plot ratio 1:3.5 when it should not be more than 1:75.
16. ' Parawise comments have been filed on behalf of respondent/KBCA. Preliminary objections have been taken that petitioners have no locus standi to file this petition which even otherwise suffers from laches. While tracing the history of the case, it has been stated that the subject plot is located on 200 feet wide road Khayaban-eRoomi and it was allocated for the construction of flats and shops. Proposed building plan was approved in the year 1974 for ground + 10 + Penthouse, shops at front ground floor and residential flats on upper floors. The fully constructed building was commercialized by competent authority on payment of commercial charges in 1989 and revised approval was granted after commercialization with enhanced plot ratio 1:3.5 on 30-6-1990. After obtaining such approval, the owner converted the existing building for commercial in 1990 but the additional approved construction was not carried out at that time. Owner submitted revised approval on the basis of earlier approved area with plot ratio 1:3.5 and after clearance of Master Plan Department, the approval was granted for Basement + ground and first floor at rear open space on 12-3-2002 on usual terms and conditions. It was not denied that the subject plot is of FL category and was allotted for construction of residential flats and plot ratio 1:2 was applicable 7- 1/2% shops at front side were allowed. The building plan was approved for ground 10 + Penthouse + 7-1/2% shops on front at ground floor within the allowable plot ratio 1:2 with 20 feet compulsory open space around. It has been admitted that the entire building constructed as per approved building plan dated 28-8-1974 was purchased by respondent No,4 as the apartment building in 1989 which was commercialized by the then Chief Minister of Sindh by relaxing-rules and enhancing plot ratio from 1:2 to 1:3.5. Requirement of compulsory open space was also relaxed on 28-8-1989. It has been contended that commercialization was done as per rules and procedures and Architect plan was approved accordingly with ratio to 1:3.5: It has not been denied that all NOCs as referred were cancelled in the year 1990 including that of the subject building but it was later restored on 2-1-1992 by the then Chief Minister on an appeal filed by respondent No,4. Public objections were invited by KBCA in this regard but objections were not received from anyone including from the petitioners. Approval of revised proposed building plan has been admitted after clearance from Master Plan Department and Environment Control Department of KDA. It has not been denied that KBCA had restrained respondent No,4 from raising construction till final approval.
17. Various allegations against the official of KBCA have been denied, and it has . Been prayed that the petition is liable to be dismissed as the petitioners are indulging in frivolous litigation due to which public exchequer has suffered great monetary loss.
18. ' Rejoinder to comments/counter-affidavit by respondent/KBCA has been filed, on behalf of the petitioners reiterating the facts as mentioned in the petition and stating that neither the petitioner suffers from laches nor it can be said that petitioners have no locus standi. To show their bona fide intention and motives, the petitioners have referred to the litigation as a result whereof so many buildings constructed illegally and unlawfully and in violation of rules were ordered to be demolished by the Courts of the country up to the Hon'ble Supreme Court.
19. ' We have heard M/s. Naimur Rehman and Rizwana Ismial learned counsel for the petitioners, Mr. Asim Mansoor Khan learned counsel for the respondent No,1, M/s. MuMr A. Malik and Faisal Kamal learned counsel for the respondent No,4 and Mr. Abbas Ali learned Additional Advocate-General.
20. With their able assistance we have examined the various documents placed on record by the parties in support of their respective contentions. We have also perused the report of the Official Assignee who was appointed to inspect the site take photographs and submit his report after seeking assistance of Architect/Engineer as to what extent the construction was raised on the subject plot.
21. Learned counsel for the petitioners in order to show that they have locus standi to file this petition have argued that petitioners being residents of locality and as citizens of Karachi have a right to question the unauthorized and illegal construction being raised in violation of the rules and regulations as envisaged in Sindh Building Control Ordinance, 1979 and Karachi Building and Town Planning Regulations. In support A of his contention learned counsel has relied upon the cases reported as (1) M/s. Excell Building and others v. Ardeshir Cowasjee and others (1999 SCMR 2089),
(2) Ardeshir Cowasjee v. Karachi Building Control Authority and others (1999 SCMR 2883), and (3)
22. Ardeshir Cowasjee v. Multiline Associates Karachi and others (PLD 1993 Karachi 237), which also covers the objections regarding the locus standi of the petitioners in view of the rule laid down in the above referred cases we are of the considered view that this petition is maintainable and the petitioners have locus standi to file this petition.
23. ' With reference to the Authority of Chief Minister who cannot be allowed to ignore the requirement of law and statute and cannot use his power in arbitrary manner, learned counsel has referred to State v. Mazharul Haq (1998 MLD 1264) where the case reported as Shehla Zia v. Wapda (PLD 1994 SC 693) was followed. Learned counsel has also referred to State v. Abdullah Shah (1998 MLD 216), PMA v. Government of Sindh (1979 CLC 382), and Al Shafique Housing Society v. PMA (PLD 1992 SC 113). With reference to mandatory requirement of Zoning Regulations; 1972, which are part of the Regulations 1979, according to the terms of acution/allotment, learned counsel has referred to Rahmesh M. Udeshi v. The State (PLD 2003 Karachi 423). So far laches is concerned learned counsel again with reference to Multiline's case PLD 1993 Karachi 237, has_ argued that in the first instance there is no laches on the part of the petitioners, and even otherwise laches simpliciter is no ground for non-suiting a petitioner if the equities are not against him; as it is not the same thing as limitation.
24. ' In rebuttal Mr. Munir A. Malik learned counsel for the respondent No,4 who has mainly argued this case virtually on behalf of all the respondents has stated that the subject plot was commercialized after observing all usual formalities and permission has been granted for construction as per approved building plan. Learned counsel further argued that in view of commercialization of the plot, which is within the competence of authority, the ratio for construction shall change and the building plan now approved by the Authority is in accordance with such requirement of law, hence the petition is liable to be dismissed with special costs.
25. ' This matter after being heard at length was reserved for orders. However, before the order could be dictated and announced Mr. Munir A. Malik, learned counsel for the respondent No,4 after supplying a copy to the learned counsel for the petitioners, along with his statement has placed on record a copy of decision of City Council published in daily `DAWN' Karachi dated June 28, 2005 granting/approving "Commercial Status" for major roads of city including Khayaban-i-Saadi, Khayaban-iRoomi, Nishtar Road and Alamgir Road. In this contenxt learned counsel has also referred to the case reported as Irfan and 7 others v., KBCA and 5 others (2005 CLC 694) decided by a Division Bench of this Court wherein it has-been held as under: ' 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 Builder's case and further reflected in para. 21 of this judgment by now a number, of multistoreyed structures had been raised on main Clifton Road. Even from para. 18 of aforesaid judgment of Hon'ble 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."
26. ' We have given due consideration to the arguments advanced by the learned counsel for the parties, the material placed on record and the law cited at the bar. Apart from the contention of Mr. Munir A. Malik that subject plot was commercialized after observing all usual formalities and such permission was granted for construction as per approved plan; in view of the decision of the City Council approving the commercial status of four major roads including Khayaban-e-Roomi on which the subject plots located, which is within the competence of City Council, position has changed. Grievance of the petitioners that conversion of land use in the plot from residential flat side to commercial is in violation of the applicable law and null and void ab initio stands vanished.
27. No such relief can be granted in view of the conversion allowed by the City Council and despite copy having been supplied to the learned counsel for the petitioners of which an acknowledgement dated 1-7-2005 was obtained by the learned counsel for the respondent No,4, the petitioners have not challenged the said decision of the City Council by amending the petition, hence no relief can be granted under the circumstances. Obviously, as per rules and regulations governing the ratio of the area to be constructed, the same shall change in view of the change of the use of the subject plot. The other relief as sought except to the extent of violation, if any, in the approved building plan, is no more available to the petitioners. We are in respectful agreement with the view taken by another Division Bench of this Court in the case of Ifran and 7 others v.
28. K.B.C.A. And 5 others (2005 CLC 694), and while dismissing the constitution petition we would direct the Karachi Building Control Authority to critically examine the construction raised or being raised as to whether the same is in accordance with the approved plan, and deviations, if any, being not regularizable, shall be removed/demolished by the competent authority within a period of three
(3) months under intimation to this Court.