' MUSHIR ALAM, J.---Petitioner, Quaid-i-Azam's Mazar Management Board (Board) through instant petition has impugned buildings constructed above 91 feet Mean Sea Level (M.S.L.) within the radius of 3/4 miles of Quaid-i-Azam's Mazar with consequential direction to the Respondents Nos.1 to 4 to demolish all structures and buildings in excess of permissible limit, being derogatory to the sanctity and dignity of the Mazar.
2. It was contended by Mr. Nairmur Rehman, learned counsel for the Petitioner that, in order to maintain sanctity of Quaid-i-Azam's Mazar "the Quaid-i-Azam's Mazar (Protection and Maintenance) Ordinance, 1971 (Q.M.O., 1971) was promulgated on 14-10-1971, which inter alia, provided that, sanctity of the Mazar and peripheral area shall be maintained. To carry out the objective of the Q.M.O., 1971 under section 4 thereof, Petitioners Board was constituted.
3. On the directive of the then President of Pakistan, the Board convened a special meeting on 29-1- 1979. The members of the Board, so also various other authorities including the then Deputy Martial Law Administrator Zone C, attended the meeting. In the special meeting a resolution in following terms was passed: "The Deputy Martial Law Administrator emphasized that bye-laws be made by K.M.C./K.D.A. To regulate the height of all structure within three-fourth of a mile from the Mazar. The Board agreed with the suggestion and the K.D.A./K.M.C. Representatives promised to comply forthwith."
4. According to Mr. Naimur Rehman, above amounts to order and directives issued by the Deputy Martial Law Administrator and in view of the Article 270-A of the Constitution of Pakistan, 1973, is binding as law, he relies on PLD 1988 Supreme Court 416. In furtherance to such directions, special committee on the sanctity of Quaid-i-Azam's Mazar in its meeting dated 10 August, 1991 resolved and recommend amendment in. The Karachi Building Control Authority Ordinance, 1979 to impose height restriction.' The committee also proposed amendment in section 8 of the Q.M.O., 1971 defining action that may be termed as violative or prejudicial to the sanctity or dignity of the Quaid-i-Azam's Mazar.
5. Mr. Naimur Rehman, learned counsel ' contended that the instructions of the President are binding on Province under Article 145 of the Constitution of Pakistan, 1973. It was therefore, urged that, since the special meeting convened on the directive of the President of Pakistan, had passed a resolution, therefore, the Provincial Government in furtherance thereto issued a notification dated 10th September, 1991 imposing height restriction. The Notification is available at page 49 which, inter alia, reads as follows:-- "No, SOI(KDA)6-108/90.--The Government of Sindh is pleased to reaffirm and confirm the decision of Quaid-i-Azam's Mazar Management Board dated 29-1-1979 to the effect that, no building will be constructed above the podium level of Quaid-iAzam's Mazar i,e, 91 feet above Mean Sea Level (M.S.L.) within a radius of six (6) furlongs of the Quaid-i-Azam's Mazar."
6. It was contended that in number of Constitution Petitions this Court enforced such height restrictions.
7. It was vehemently argued that large number of buildings have been constructed around Quad- i-Azam's Mazar in violation of above directives as detailed in para.17 of the petition. It is alleged that, 40 buildings were constructed before 1979. 54 buildings were completed after 1979 and 55 buildings were also raised in violation of the height restriction as noted above. He vehemently urged that, all such buildings are liable to be demolished and in future no building beyond permissible limit be allowed to be raised nor plan be approved.
8. Mr. Faisal Siddiqui, learned counsel for KBCA, contended that, the restriction of height limit around Mazar was first time imposed under Regulation No,25.10.1 of Karachi Building and Town Planning Regulation, 2002 (KB&TP Regulations, 2002) as notified on 4-4-2002 and not before. He contended that the resolution of the Board referred to by Mr. Naimur Rehman is not the law declared. It is, at the best, an opinion or suggestion to the authority concerned. According to him, though the recommendation was there but the law was not amended as recommended by the Special Committee. It was further urged that, Regulation No,25 of KB&TP Regulations, 2002 is being implemented and followed in letter and spirit. No building plan beyond the permissible limit have been approved since the date of enforcement of KB&TP Regulations, 2002. It was further contended that the Regulations are prospective in nature end cannot be enforced retrospectively.
9. Mr. Khalid Anwar, learned counsel appearing for the private respondents Nos. 5 and 6 argued that the Q.A.O., 1971 was promulgated for the management and maintenance of the Quaid-i- Azam's Mazar and its peripheral area as defined in section 2 thereof. According to him, the Board, constituted thereunder, cannot exercise jurisdiction or authority beyond the area specified therein.
He urged that, neither the President nor the Board could issue any directive under the Q.M.O., 1971 of the nature sought to be enforced through instant petition. It was further contended that the Board constituted under the Ordinance, 1971 is a management board and not a regulatory authority, and it cannot issue any directives of the regulatory nature in respect of the area beyond its territorial bounds.
10. It was further contended that Notification dated 10-1-1991 issued by the Government of Sindh is without any authority, it has no legal sanction. According to him, impugned construction was raised almost 18 years before this petition was filed. No case is made out and therefore, the petition is liable to be dismissed.
11. Exercising right of rebuttal, Mr. Naimur Rehman urged that directives of Federal Government and the Notification have force of law. In support of his contention, reliance was placed on Muhammad Bachal Memon v. Government of Sindh PLD 1987 Karachi 296, Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 Supreme Court 26.
12. We have heard the arguments and perused the record.
13. Only controversy that needs to be addressed in this petition appears to be the law that is applicable as regard height restriction within a radius of 3/4 mile from the Quaid's Mazar.
14. Adverting to the stance taken by Mr. Naimur Rehman, that first time, height restriction could be read into the directive of Deputy Martial Law Administrator Zone 'C' as contained in the resolution passed by the Special Committee in the following terms.
"The Deputy Martial Law Administrator emphasized that bye-laws be made by K.M.C./K.D.A. To regulate the height of all structures within three-fourth of a mile from the Mazar. The Board agreed with the suggestion and the K.D.A./K.M.C. Representatives promised to comply forthwith."
15 Mr. Naimur Rehman, on the strength of case of Benazir Bhutto v. Federation of Pakistan (PLD 1988 Supreme Court 416 at 498, 507, 509 and 511) whereby lending constitutional validity to the President's Order, Martial Law Regulations or Martial Law Orders made during the specified date.
16. Cases relied upon by Mr. Naimur Rehman, do not support his case. In the case of Muhammad Bachal Memon (PLD 1987 Karachi 296) apex Court, at page 315 in para. 2 while examining Article 270A, held that, "its Clause 1 gives validity to all laws including Martial Law Orders, and Regulations made during 5-7-1977 to 30-12-1985 and provides that same shall not be called in question in any Court on any ground whatsoever notwithstanding any judgment of any Court or any thing contained in the Constitution. In paragraph 5 of same page and in paragraph 2 at page 317 reiterated dicta it laid in the case of Ziaur Rehman 1973 Supreme Court 49, "that in spite of the bar provided in the said clause the jurisdiction of the superior to scrutinize action of military authority was not completely barred in respect of those actions, which were mala fide, without jurisdiction or corum non judice". In the case of Ghulam Mustafa Khar PLD 1989 SC 26 at page 54 para. 30 apex Court reaffirmed that "this Article does not take away the jurisdiction of High Court from reviewing acts, action or proceedings which suffered from defect of jurisdiction or were corum non judice or were mala fide. For this purpose it is unnecessary to draw a distinction between malice in fact and malice in law".
17. Resolution as reproduced cannot be read either as President's Order, or Martial Law Regulation or Martial Law Order, within the contemplation of Article 270-A of the Constitution of Pakistan. At the best it could be labeled as a wish or recommendation of the Special Committee convened at the desire of the President of Pakistan, that did not come true. Avowed wish or recommendation how solemn, devout or laudable it may be or merely on the strength that it had flown from the highest authority, cannot be enforced as a command of law unless translated into law by the appropriate legislature.
18. Adverting to seemingly strong bit of reliance on the Notification issued by the Government of Sindh dated 10th September, 1991. Mr. Naimur Rehman vainly contended that, pursuant to directives of Chief Martial Law Administrator, Government of Sindh reinforced decision recorded in the minutes dated 29-1-1979 through a Notification dated 10th September, 1991 (page 49 of the court file). Whereby, height restriction on the building within the specified vicinity of Mazar was imposed.
The Notification dated 10-9-1991 reads as under; "NO. SOI(KDA) 6-108/90.--The Government of Sindh is pleased to reaffirm and confirm the decision of Quaid-e-Azam's Mazar Management Board dated 29-1-1979 to the effect that no building will be constructed above the podium level of Quaid-eAzam's Mazar i,e, 91 feet above Mean Sea Level (M.S.L.) within a radius of six (6) furlongs of the Quaid-e-Azam's Mazar."
19. Learned counsel when confronted as to under what mandate of Constitution or law, the notification was issued. Mr. Naimur Rehman urged that, it was pursuant to the directions of C.M.L.A.
Referred to above and in furtherance to the directive of the President of Pakistan pursuant to section 8 of the Q.M.O., 1971, in obedience of the constitutional duty the Provincial Government had issued the subject Notification. He urged that directives of the President of Pakistan in terms of Article 145 of the Constitution, 1973 are binding on the Provincial Government, which the Provincial Government is obliged to follow. He further extracted support from section 8 of the Q.A.M.
Ordinance, 1971 which, inter alia, provides that "no person shall do any act or behave in any manner which is or tends to be derogatory to the sanctity and dignity of the Quaid-I-Azam's Mazar".
According to him, the directive of the President of Pakistan was in light the section 8 ibid. When he was required to point out any directive of the President, our attention was drawn to extract of the Minutes of the Meeting of Quaid-iAzam Memorial Fund Board dated 29-1-1979. Wherein it was noted that "on the directive of the President a special meeting of the Quaid-I-Azam Memorial Fund Board presided by the Chairman, Mr. Fida Muhammad Khan, Minister for Housing and Works to consider the development of the area around the Mazar called the peripheral area at Karachi.
20. It may be observed that, such meeting only resolved to amend the K.B.C.A. Ordinance 1979 thereby providing height restriction within specified are of 3/4 radius of Mazar. It further recommended substitution of section 8 of the Q.A.M. Ordinance, 1971 thereby articulating acts that may be violative of the sanctity and dignity of the Mazar. As observed above, desire or recommendation howsoever solemn, devout or laudable may be or for that matter, it having flown from the authority how highsoever it may be, cannot be equated with law or legal command enforceable under the law. Under the scheme of 1973 Constitution source of all power, authority and duties exercisable by the State and its executive functionaries emanates from Constitution itself or the law that may be framed thereunder by the competent legislature. Such power, authority or jurisdiction could only be exercised within parameters defined under the Constitution or statutory instrument. Article 4 of the Constitution of 1973, mandates that, no person could be prevented from or be hindered in doing that which is not prohibited by law. State and its executive functionaries have no inherent powers to permit or otherwise prohibit doing of that, which law does not prohibit. (See also Mehran Security Services (Pvt.) Ltd. v. Pakistan and others (2000 YLR 2655).
21. Authority to issue notification emanates from Constitution or Statutory instrument enacted by the competent legislature. Notification of the Provincial Government dated 10-9-1991 as reproduced in para.18 above, admittedly has not been issued under any legislative instrument.
Issuance of Notification, a legislative function, is to be exercised by the delegate under mandate of law, no plenary authority could be invoked nor are available to issue a 'Notification', whereby prohibit doing of that which is not prohibited by law. We are clear in our mind that the Notification sought to be enforced, has not been issued under any statutory law cannot be enforced as command of law.
21-A. On examination of the Scheme of the Q.M.O., 1971 Authority, as may be notified by the Federal Government, is responsible to maintain and manage `Mazar' and its 'peripheral area'. Section 2 of the Q.M.O., 1971, defines the peripheral area to mean the land measuring 71 acres or thereabouts situated outside the grill of boundary wall and detailed in the plan set out in the schedule. The Quaid-i-Azam's Mazar was declared to be over plot of land and structure measuring 61 acres or thereabouts surrounded by grilled boundary wall.
22. It may be noted that the Q.M.O., 1971 was promulgated for the protection and maintenance of the Quaid's Mazar and its peripheral area, as detailed in the schedule appended to the Q.M.O., 1971 and for the prevention of the acts derogatory to the dignity and sanctity thereof. The Mazar was declared to be historical monument of National importance. The Mazar and its peripheral area under the Q.M.O., 1971 are the federally administered area. The Board, constituted thereunder is a management and maintenance Board, it is not a regulatory authority. The Board exercises administrative and management authority and enjoys control over the area as defined under section 2 thereof, and not beyond. It cannot act or interfere in the affairs of the Province or on any area beyond the territorial bound as defined under section 2 ibid. Any authority acting under the Q.M.O. 1971 is required to act within the framework of the Q.M.O., 1971. Even if the directives of the President of Pakistan are presumed to be under section 8 ibid as suggested by Mr. Naimur Rehman, then too, such directive, if any, could only be read and be enforceable, within the bounds as set down under the Q.M.O., 1971 and not beyond.
23. Mr. Naimur Rehman therefore, contends that, the recommendation of the Board, pursuant to directives of the President, to the Provincial Government to amend the law to restrict the height of the building within a radius of 3/4 mile around Quaid's Mazar are of binding nature. As noted above the Board or any other authority deriving power under the Q.M.O., 1971 could not issue any directive beyond the defined territorial bound and scope of Q.M.O., 1971. Even the Notification dated 10th September, 1991 issued by the Provincial Government as noted above; was without lawful authority.
At the relevant time, there was no law that empowered or authorized the Provincial Government to regulate such height restriction. Even, the Federal Government, as is apparent in the Minutes of Meeting dated 10th August, 1991 adopted such position. In para-14 of such minutes, (at page 35 of the Petition) Mr. G.A. Jehangir, Secretary Environment Affairs stated that Q.M.B. Has no legal authority. The Sindh Government said it would issue a notification, but in the last one year no such thing has been done. The Q.M.B. Is banking on the Sindh Government". In para-19 (at page 37) it was noted that "the building on the provincial land is with the permission of the Provincial Government. This is not even a concurrent subject, it would be against the Constitution, if the Federal Government intervenes or issues a Notification. He was of the opinion that no ordinance is necessary, it can be done by issuing of a building regulations, order for restricting the construction of building". The meeting only recommended the amendment in the law.
24. It seems that under section 21-A of the Sindh Building Control Ordinance, 1979 Karachi Building Town Planning Regulations, 2002 were enforced on 4-4-2005 imposing height restriction.
Regulation 25-1-10 reads as follows:- 25-1-10 Height Restriction of the Building 25-1-10.1 The restricted flying gap and safety zone as prescribed by the Civil Aviation Authority and P.A.F. Shall be taken into consideration while determining the height of the building.
25-1-10.2: The height of the building shall not be above the podium level of 91 feet (27.72 m) M.S.L.
Within 3/4 mile (1.2 Km) radius of Quaid-e-Azam Mausoleum.
25. It could thus be seen that, curb on height of a building, above the podium level of 91 feet (27.72 m) M.S.L. Within 3/4 mile (1.2 K.m) radius of Quaid-e-Azam Mazar, could only be enforced from the date of enforcement of S.B. & T.P. Regulations, 2002. Therefore, after 4-4-2005, K.B.C.A. Cannot approve any Building Plan beyond the height limits set down in Regulation 25 as reproduced above.
26. Above are the reasons for the short orders that was passed on 16-12-2005 which reads as follows:-- 'For the reasons to follow the Petition is disposed off, along with all the pending applications, in the following terms:
(1) Height restriction of a building above podium level of Quaid-e-Azam's Mazar i,e, 91 feet (27.72 m) above Mean Sea Level ("MSL") within 3/4 mile (1.2 km) radius of Quaid-e-Azam's Mazar become enforceable from the date of Notification of Karachi Building Town Planning Regulations ("KBTPR 2002") with effect from 4/4/2002.
(2) Approval of building plan, if any, after 4-4-2002 in violation of Regulation 25-1-19.2 of KBTPR 2002 is illegal and cannot be compounded or regularized under the amnesty scheme as in force.
(3) K.B.C.A. Are duty bound and shall take appropriate action forthwith, in accordance with law, for demolition of any construction raised beyond the permissible limit after 4/4/2002.
(4) K.B.C.A. Is directed to place on record details of the building plans that have been approved regarding any construction within the radius of 3/4 miles of Quaid-e-Azam's Mazar after 4-4-2002 within four weeks from today with advance copy to the Petitioner.