1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The petitioners who are residents of the area known as Bath Island have filed this petition seeking declaration that the respondents Nos.3 and 11 to 13 have violated their constitutional rights guaranteed under Articles 9, 14, 23 and 24 of the Constitution and that the respondents Nos.1 to 3 have acted discriminately against the petitioners contrary to Article 25 of the Constitution and that Plot No,61-C located in Bath Island cannot be converted from low- density residential plot to high-density flat-site by respondents Nos.1 to 3 without complying with the mandatory provisions of Regulations, 2002 and K.D.A. Order, 1957 and that the respondents Nos.1 to 3 have no powers authority or jurisdiction to convert the said plot from low-density to high- density or permit the construction of multistoreyed building contrary to law and/or the land sale conditions and that the approved plan granted by respondent No,1 for construction of multistoreyed building on the above plot is illegal and the construction is liable to be demolished.
2. ' The petitioners have further sought direction to the respondent Nos.1 to 3 to jointly and severally demolish building works and building carried out on the above plot and that respondent No,3 should cancel/forfeit lease of the impugned plot for violation of the law including Regulations, 2002 and the terms of the land sale conditions.
3. ' The petitioners have further prayed that the respondent No,10 be restrained from registering any conveyance and or interest in respect of any part of the building and/or the impugned plot in favour of any person whatsoever, and respondents Nos.5 to 8 be restrained from issuing any electricity, gas, telephone and sewerage connections to the building on the impugned plot. They have further sought permanent injunction against respondents Nos.1 to 3, from permitting conversion of the impugned plot from low-density residential use to any other use in the future.
4. ' It is stated by the petitioners that according to standard land sale conditions in Bath Island no building can exceed more than three storeys including ground floor and 2 third of the area of the plot is to be left as open space and the open space shall be free from any erection or obstruction subject to the following:--
(a) Steps on the ground floor and platform will be excluded from the built up area.
(b) Open balconies abutting on the outer wall of the house will be excluded from the built-up area.
(c) Open staircases will be excluded from the built-up area.
(d) Covered staircase and open or covered balcony inside the internal courtyard will be included in the built-up area.
(e) Continuous or more than 20 feet gallery will not be allowed as free open area, but will be included in the built-up area.
(f) Covered passage on the ground floor and covered or open passages on the upper floor will be included in the built-up area.
(g) Porches, Bay windows and similar projections will be included in the built-up area; ' It is further alleged that according to standard agreement/lease of the plot sold through auction, inter alia, clearly states that the agreement/lease shall be subject to the terms and conditions published at the time of auction. The petitioners have averred that it was noticed in June, 2004 that the owners of the plot (respondents Nos.11 to 13) were constructing a multistoreyed building contrary to the land sale conditions/development scheme of the area as well as the relevant laws.
5. The petitioner No,2 obtained a copy of approved plan. The respondents Nos.10 to 12 had also erected a notice board on the plot showing the details of the approved plan. On examination of approved plan they found the following violations:--
(i) The land-grant/auction-sale and lease conditions of the subject plot only allow a G + 2 floor bungalows on 1/3rd of the plot. The G + 6 floors multistorey approved by KBCS and KMC is in contravention of these zoning rules.
(ii) The compulsory open spaces to be 15 feet on the three road sides, and 10 feet towards the adjacent plot. Instead completely inadequate spaces have been kept.
(iii) The parking layout shown is violative of the requirements of the Karachi Building and Town Planning Regulations, 2002 (hereinafter called the "Regulations").
(a) Two-way driveway widths are less than 18 feet.
(b) Correct stall width of 8 feet are not available.
(c) Cars are stacked one behind the other, this is not permissible.
(d) A proper layout, with stalls and turning radius, has not been shown.
(iv) A KESC substation for this 48,000 + square feet over-seized building has not been provided.
(v) The builder is selling flats without requisite KBCA NOC for sale.
6. ' The violations and illegalities committed by respondent No,1 in granting the approval were pointed out, in response whereof the respondent No,2 replied that the building plan was granted by KBCA after clearance from Town Planning point of view.
7. ' It was further stated that the approved plan was in accordance with Karachi Building and Town Planning Regulations, 2002 and the construction was raised accordingly.
8. ' It is contended that the respondent No,2 did not state whether any public notice was issued for change in the development scheme of the Bath Island or any objections were invited from the residences of the area in which the impugned plot is located. It is also alleged that after the exchange of correspondence the petitioner No,2 received a copy of he letter dated 29th of July, 2004 wherein the Additional Secretary to the Governor expressed alarm as to the deteriorating condition of the area known as Bath Island. According to the petitioners the latter expressed concern about following matters:--
(a) Buildings are being allowed to be constructed without providing basic amenity.
(b) Residential plots are being converted contrary to the rules.
(c) Approved plan is being prepared contrary to the Freedom of Information Act, 2002.
(d) The Government required such deterioration to stop immediately.
9. ' Immediate action was required against all concerned officials and report was sought by 10th August, 2004. It is also alleged that no clearance was obtained from respondent No,8 as required under section 12 of the Environmental Protection Act, 1997. It is maintained that the respondent Nos.1 to 3 ignored the letter written by Additional Secretary to Governor and the construction was going on till the filing of the petition. It is urged that the respondents Nos.1 and 2 are in criminal collusion in attempt of respondents Nos.11 to 13 to convert low-density area comprising of Bungalows and low amount of traffic by constructing high-density building more suitable for high-density area which will have adverse effect to (a) on supply of water, (b) choking of sewerage lines (c) affecting the calculation of Municipal services e.g.: collection of garbage, (d) increase in a diesel and patrol and fumes, increase a noise. It will cause further degradation in the already deteriorated Environmental Atmosphere and the development scheme of Bath Island. It is stated that it will affect the quality of life contrary to Article 9 of the Constitution as well as affect the petitioners interest in property contrary to Articles 23 and 24 of the Constitution and that the exercise of the powers by respondents Nos.1 to 3 in favour of respondents Nos.11 to 13 is discriminatory contrary to Article 25 of the Constitution. It is further alleged that the permission to construct multistoreyed building amounts to change the area development plan which cannot be made without obtaining sanction from K.D.A. And after fulfilling the mandatory requirements of Article 40 of K.D.A. Order, 1957. It is also stated that most of the petitioners invested large sums of money by constructing/purchase houses on the representation of the predecessor of respondent No,3 to maintain Bath Island as low-density calm and quiet area. It is also contended that permission to construct multistoreyed building defeats the purpose of building laws including KDA Order, 1957 and Regulations of 1979.
10. ' The requests Nos.3 and 4 (KBCA) have stated in their counter-affidavit to the main petition that the proposed Building plan for Plot No,61 Bath Island was submitted by the owners through the lessor for approval of construction of the Building comprising ground floor for Car Parking + Ist to 5th floor (residential units) + 6th floor (recreation area). NOC was also issued for ground + six upper floors, NOC was also issued for sale and advertisement of flats. The proposed building plan was approved vide letter dated 24-11-2003. The building was completed structurally up to 5th floor which C.O.S. As required by the approved building plan. They have taken plea that petitioners have filed an application to harass the officials of respondents Nos.3 and 4 and in order to restrain them from performance of their lawful duties. It is contended that the petitioners have no locus standi to file this petition as construction is being raised in accordance with the approved building plan udder the provisions of Sindh Buildings Co: 'rol Ordinance, 1979 and the Karachi Building and Town Planning Regulations, 2002 and that proper notice was displayed on the Notice Board giving required information to the public.
11. ' They have taken plea that the matters pertaining to the sale/lease conditions pertained to Town Planning of the lessor i.e, City District Government Karachi and the proposed building plan was forwarded by the lessor along with NOC. According to them the KBCA has granted approval to the building plan in accordance with law, Rules and Regulations which is in accordance with the provisions of KBTPR, /002 notified by the Government of Sindh.
12. ' The respondents Nos.12 to 14 (owners of the plot) have stated in their counter-affidavit to the main petition that they purchased the plot in the year 2003. The property was originally owned by the defunct KMC and was sold by auction on 6-1-1952. The lease for the plot was executed between KMC and the then purchaser on 26-5-1958. In terms of the clause 8 of the said lease deed the said plot and the building or erection built thereon were to be used for residential purpose only and could not be diverted to other use without express consent in writing of the lessor. It is contended that the terms and conditions of the lease did not restrict the construction of any number of the floors, neither there was any height restriction. They have alleged that the building is being constructed by them in accordance with Karachi Building and Town Planning Regulations.
13. ' They have further contended that the petitioners have no locus standi. The petition involves disputed questions of fact, which could not be adjudicated under the constitutional jurisdiction of this Court. The petition is barred by laches as construction commenced in 2003 after proper approvals accorded under the Sindh Buildings Control Ordinance, 1979 and Karachi Building and Town Planning Regulations, 2002, the building has been constructed up to 5th floor and the petition has been filed with mala fide reasons which will not adversely affect the respondents Nos.12 to 14 only but allottees/purchasers of residential units in the building also. It is further alleged that after obtaining proper NOC for sale in terms of Sindh Buildings Control Ordinance 1979, 18 residential units out of 20 have been allotted to third parties who have invested substantial amount and are going to be affected seriously. It is also submitted that without prejudice to their plea that the lease does not contain any restrictions on erection of building, no lease condition can override the express provisions of Sindh Buildings Control Ordinance, 1979 and 2002 Regulations framed thereunder. It is alleged that since lease agreement in respect of the plot under construction does not contain any restrictions regarding the nature of the building to be constructed or pertaining to the floors height etc., therefore, they have not violated any terms and conditions mentioned in their lease agreement. They have supported version contained in the counter-affidavit of respondents Nos.3and 4 pertaining to the submission of proposed building plan and the approval thereof. It is further contended that the approved building plan is in accordance with Sindh Buildings Control Ordinance, 1979 and KBT Regulations, 2002 which categorically cover the Zoning Regulations, Area Standard applicable to Bath Island quarters. They have further taken pleas that changes have been brought about in different areas of Karachi through a notification issued under section 21-A of Sindh Buildings Control Ordinance, 1979 dated 4-4-2002 through which the Authority made Regulations governing the different schemes of Karachi. It is submitted that the petitioners have not challenged the said Regulations in this petition. Regarding letter of the Additional Secretary to Governor they have stated that mere expression of opinion of the said officer cannot override the Ordinance or the Regulations under which the plans of the building have been approved. They have specifically pleaded that density standards as provided under the Regulations have been maintained and that the area has always had buildings containing flats and that the assertion that area only contained Bungalows is false and denied. They have contended that under the leases produced by the petitioners, construction was allowed up to three storeys and the area is already a high-density area. The allegation that the construction shall affect supply of water has been denied and has submitted that there is no question of violation of Article 9 of the Constitution.
14. According to them there is no question of discriminatory treatment It is also alleged that the flats being constructed by them are of high density is not correct. They have specifically denied the averment that with the approval of building plan in their favour low-density flats site has been changed to high-density flats and that even before the acquisition of property by the respondents Nos.12 to 14 there were residential units in form of apartment on plot under construction. They have further alleged that the plan was approved by MP and ECD Department and Environmental NOC was given on 22-11-2003. It is further alleged that all the assertions as to the amenities were taken into consideration by the competent authority while approving the building plan and that the plea that there would be Environmental degradation is not sustainable, as number of high rise buildings exist in the adjoining area. They have alleged that the construction of building by them does not amount to change of areas building plan. They have alleged that KDA Order, 1957 has been repealed and therefore no reliance can be placed on Article 40 of the repealed statute. They have contended that there is no relaxation of the rules and the building plan has been approved in accordance with the provisions contained in the Sindh Buildings Control Ordinance and Regulations, 2002.
15. ' Mr. Arshad Mohsin learned counsel for the petitioners Nos.9 and 10 filed power on the date of hearing of the petition and sought permission to withdraw the petition of behalf of the petitioners Nos.9 and 10. None of the Advocates present raised any objection and consequently the petitioners Nos.9 and 10 were allowed to withdraw their names were deleted from the array of the parties.
16. ' We have heard learned Advocates for the parties. Mr. Abdul Rehman learned counsel for the petitioners Nos.1 to 7 addressed main arguments on behalf of the petitioners and Mr. Yousuf Moulvi Advocate for petitioner No,8 adopted his arguments. Mr. Abdul Rehman learned counsel for the petitioners Nos.1 to 7, Mr. Kamal Azfar learned counsel for the respondents Nos.3 and 4 and Mr. Abid S. Zuberi learned counsel for respondents Nos.12 to 14 filed their written synopsis of the arguments as well. The learned Advocate for the petitioners has reiterated the contentions raised in the petition and has added new dimensions to the contentions as well. They have submitted that at the time of issuing the lease, land was owned by Karachi Municipality the predecessor of respondent No,1 City District Government Karachi who is current lessor. According to them the preamble of lease shows that the plots in the area were sold under the rules for management and disposal of waste lands within the Municipal limits of the Karachi, which according to them is known as development scheme or a building scheme under the legal mechanism. According to them this position has been upheld by learned Single Judge of this Court in the case of Ardeshir Cowasjee v. Naqi Nawab PLD 1993 Karachi 631.
17. ' They have submitted that there is no statutory notified scheme in respect of the area known as Bath Island and as such no statute per se is applicable to this area and therefore the sale of the land was in consistency with the provisions of the rules for the management and disposal of waste lands by way of public auction. They have further contended that the land was sold on the terms and conditions contained in the auction conditions as a part of the lease. They have however admitted that the sale conditions include the condition, "the lessee shall comply with and observe all the Rules and Bye-laws of the lessors for the time being in force." They have further placed reliance on a judgment from British jurisdiction in the case of Elliston v. Reacher (1908) 2 Ch, D.374.
18. However we are of the opinion that this judgment is in the peculiar circumstances of the said case and is not a precedent in the contest of the laws prevailing in Pakistan.
19. ' They have submitted that the petitioners are the residents of area known as Bath Island and therefore they have locus standi to file this petition seeking the enforcement of the law.
20. ' Dealing with the objection on the point of the lahces they have submitted that the principle has been clarified by the Honourable Supreme Court in the case of Excell Builder's v. Ardeshir Cowasjee 1999 SCMR 2089. Explaining the factual position they have maintained that during the pendency of the petition it was discovered that factually the process of digging the foundation began on the plot in November, 2003 but according to them it is conceded by the Advocates for respondents Nos.12 to 14 that Plinth level reached on 21st April, 2004. According to them at that stage efforts were made by the petitioners to obtain the approved plan of the construction but the matter was delayed by the respondents Nos.3 and 4. They have submitted that the copy of approved plan was furnished in July, 2004 and thereafter a legal notice was sent on 4th August, 2004 and actions were commenced against the respondents on 13th of August, 2004. According to them the delay was caused on account of the delaying tactics on the part of the respondent No,3 and therefore there is no question of the lathes because the petitioners were diligently pursuing all remedies available to them under the law to enforce their right and obtain enough information to file the petition.
21. ' Learned Advocates for the petitioners have thereafter highlighted the violations of Karachi Building and Town Planning Regulations, 2002 in issuing the approved plan. According to them the construction being carried out on the plot is admittedly a flat site and is not a Bungalow and is zoning regulations/area standards in respect of construction are stated in Chapter 25 of the Regulations, 2002. They have further argued that the approved plans have been issued by the respondents Nos.3 and 4 in excess of jurisdiction and contrary to the Karachi Building Control and Town Planning Regulations, 2002 is void and consequently the construction on the basis of said approved plan is also void. They have urged that a distinction is to be made wrherein approved plan is issued in accordance with law and thereafter the builder after deviating from the legal approved plan applied for regularization and in the case where the approved plan itself is in violation of the law and void which cannot be subsequently rectified. The learned Advocates for the petitioners have heavily relied on the law laid down in the case of Ellistion v. Reacher referred to above and have contended that the plots owned by the petitioners and the respondents Nos.11 to 13 were sold in lots subject to restrictions which were uniformly imposed on all the lots which was done consistently with some general scheme of development. They have argued that the reason for imposing restrictions were to ensure that the town planning of the area was at all times maintained. They have further submitted that in the decision Elliston v. Reacher there was no emphasis on the point that the restrictions should be specifically mentioned in the documents.
22. ' All that is stated is that the intention should be ascertained that the property was sold on the basis of these conditions on the basis that equity follows the intent and not the form. According to them the test therefore is not one written in stone but is to be ascertained from the intention that existed at that time and place.
23. ' Learned Advocates for the petitioners have placed reliance on the concepts of the common law of England and the case-law from England and Australia. We will presently consider as to how much these concepts are relevant in the context of statute law in the legal dispensation prevailing in Pakistan. They have further placed reliance on the principles laid down by this Court in the case of R.G. Sehwani Co-operative Housing Society Limited v. Haji Ahmed PLD 1983 Karachi 11, wherein the concept of building scheme was not upheld on the basis that, "it has not been fully established that the restrictive covenants were for the common benefit of the members of the Society in general.
24. The second reason for not applying this principle is that the restrictive covenants in the lease are not absolute and are conditional". They have explained that the applicability of concept of building scheme was distinguished in the above case on the basis that the locality being considered was Co-operative Housing Society and no issue of common benefit was actually demonstrated to the Court in that case. According to them in the present case the restrictions were imposed to reserve the town planning conditions in the area. They have further referred to the decision in the case of Naseer Ahmed v. Hafiz Muhammad Ahmed 1984 CLC 340 in which also concept of building scheme was not accepted and have attempted to distinguish it on the basis that non-mention of legal concept of building scheme being an exception to the general rule in respect of privity of contract was not considered in that decision. In this regard they have again placed reliance on a Single Bench judgment of this Court in the case of Ardeshir Cowasjee v. Muhammad Naqi Nawab PLD 1993 Karachi 631.
25. ' They have further argued that the application of Building scheme in terms of fundamental rights has never been enforced in the constitutional jurisdiction of Pakistan per se. According to them no guidance can be taken from England as there is no concept of fundamental rights in that jurisdiction on account of absence of written Constitution. They have further developed their idea contending that there are two methods in which the restrictive covenants can be directly or indirectly enforced. First, in the case of owner of the plot the restrictive covenants can be enforced directly through suit, as constitutional petition is not maintainable against private citizen.
26. According to them it is most likely that the owner of the plot on permission from the City District Government Karachi who have varied the lease conditions, as a defence. Secondly, against the City District Government. It would be an action to prevent the City District Government to vary terms of the lease. This can be done in either suit or in a constitutional petition and the action can be maintained on the basis that the City District Government cannot vary the terms of the building scheme under the law thereby permitting the owner of the plot to raise construction in violation of the scheme. According to them the question which needs to be answered is can City District Government Karachi vary terms of the lease without informing the other lessee within building scheme?
27. ' They have further submitted that restrictive covenants being a right in rem are attached to the property. They have maintained that in accordance with the definition of the property given in Article 260 of the Constitution of the Islamic Republic of Pakistan, the right or interest title in the property, movable or immovable, are included therein, and under Article 24 of the Constitution no person shall be deprived of his property save in accordance with law. They have stressed that the condition of the sale as enunciated in the land sale notice creates interest in land in favour of the petitioners over the subject property of respondents Nos.12 to 14 and being a fundamental right the petitioners cannot be deprived of such a right by arbitrary action of respondent No,1 which is clarified in a letter dated 17-7-2003 issued by them addressed to the Deputy Controller of the Building saying that the City District Government Karachi have no concern regarding allowing of floors of Plot No,61 Bath Island. Karachi Building Control Authority may allow the floor on the plots as admissible under the Rules and By-laws of Karachi Building Control Authority. The learned Advocate for the petitioners have assailed the NOC granted by respondent No,1 in their letter dated 8-7-2003 addressed to the Controller of Building Karachi Building Control Authority stating that the proposed building plan is in accordance with the lease/land grant term and condition and relevant restrictive provisions and that they have no objection for approval of the proposed building plan according to the Bye-laws of Karachi Building Control Authority, 2002. They have submitted that the permission granted is arbitrarily and the respondent No,1 has no jurisdiction to issue such a permission. According to them it is contrary to the land sale conditions issued by the Karachi Municipality and the Land Sale Notice. According to them the land sale conditions contained in the land sale notice have not been amended so far and have remained unchanged.
28. They have urged that it amounts to deprive the petitioners from guaranteed rights under Article 24 of the Constitution without giving to petitioners notice to the effect that their irnerest in the property is being revoked.
29. ' The learned Advocates for the petitioner have argued that the legal concept of the building scheme was in vogue in the later half of the 19th century in England and was exported by the British throughout its various colonies, including but rot limited to the Indian Sub-continent, Australia, South Africa and the United States of America through the common law countries and was enforceable in the same manner throughout.
30. ' As already observed earlier the learned Advocates for the petitioners have added new dimension to the contentions raised in the petition. It will be seen that according to averments in the petition the building plan was approved in contravention of zoning rules and was violative of the requirements of the Karachi Building and Town Planning Regulations, 2002 and the declaration was sought to the effect that the impugned plot cannot be converted from low-density residential plot to high density flat site by respondents Nos.1 to 3 without complying with the mandatory provisions of 2002 Regulations and further direction was sought to the respondent No,3 to cancel the lease of the plot for violation of 2002 Regulations and terms of the land sale conditions. A plea was taken in the comments filed by the respondents that building plan was approved in accordance with the provisions contained in Sindh Buildings Control Ordinance, 1979 and the Karachi Building Control and Town Planning Regulations, 2002, the vires thereof was not challenged. It appears that in order to meet this objection the petitioners without seeking amendment in the petition have raised alternative plea at the time of arguments challenging the validity of Sindh Buildings Control Ordinance, 1979 and vires of Karachi Buildings Control and Town Planning Regulations, 2002 in pursuance of their prayer clause 'K' which says that any other relief deemed just and proper be granted. They have propounded the proposition that the concept of Town Planning is distinguished from Building Control and consequently the Town Planning Regulations framed under section 21-A of the Sindh Buildings Control Ordinance, 1979 is ultra vires. For this purpose they have elaborated the concept of Town Planning and have placed reliance in this behalf on two Articles written by Mr. A.E. Mirams Consulting Surveyor Province pf, Bombay during the period town planning was first introduced in Karachi. They have then referred to Bombay Town Planning Act which was applicable to Karachi as well. Under this statute a system was devised containing policy of acquisition of land, developing afresh or reclaiming built up land and again re-planning it afresh, taking into account transparency of law giving impliedly the permission to people to make objections. Thus the scheme is the pivotal point and the rest of the Act revolves around the same provision. According to them an amendment to even one of the factors shall break of the entire scheme which is to be kept in mind. For instance if provision is made for drainage, lighting, water supply, taking into account the number, height and character of the building to be built on a plot, then any change to the number, height or character of the building is automatically going to have an impact on drainage, lighting and water supply of the area. They have stated that under section 45-B of the STP Act, 1915, the local authority is empowered to vary the scheme if the scheme is defective on account of an error, irregularity or informality after permission from the Provincial Government to vary the scheme but transparency is to be maintained. They have also pointed out that under section 46 of the above Act a general power to vary or revoke a town planning scheme by a subsequent scheme prepared, published and sanctioned in accordance with this Act is permissible.
31. ' They have further submitted that the sanction of approved plan amounts to commercialization of property an expression that has been consistently loosely used by the Courts and lawyers alike thereby creating ambiguity. According to them in a sense as least for the purpose of Town Planning Act, 1915, it has reference as a variation of town planning scheme and in such variation is subject to objections from the public including but not limited to the residents of the area.
32. ' Explaining the scope of Sindh Buildings Control Ordinance, 1979 they have submitted that it attempted to unify all building control within the Province of Sindh and by virtue of non obstante clause in section 2 negated the impact of any existing law in respect of the subject-matter particularly to this Ordinance. They have submitted that no rules were framed under this Ordinance in respect of Building Control. An attempt was made to make rules entitling the Karachi Building Control and Town Planning Rules, 1979, under Article 147 of the Constitution which never materialized. Subsequently section 21-A(3) was inserted in to Sindh Buildings Control Ordinance 1979 whereby it was clarified as follows : "The Karachi Building Control and Town Planning Regulations, 1979 in the case of the authority of the Karachi and the bye-laws of the council concerned in other cases duly published shall until the regulations are framed under this section, be deemed to be regulations so framed; provided that they are not inconsistent with the provisions to this Ordinance and the rules framed thereunder."
33. ' In the year 2002 the Karachi Building Control and Town Planning Regulations, 2002 were promulgated under section 21-A of the Sindh Buildings Control Ordinance, 1979 which repealed the Karachi Building Control and Town Planning Regulations, 1979.
34. ' After tracing the history of above laws the learned Advocates for the petitioners contended that the Karachi Building Control Authority does not exist at all and therefore it cannot accord an approval to the building plan. In pursuance of this contention they have submitted that the Sindh Local Government Ordinance, 2001 was promulgated on 6th of August, 2001 whereby Sindh Local Government Ordinance, 1979 was repealed. By virtue of non obstante clause under section 3 of the Sindh Local Government Ordinance, 2001 its, shall have effect notwithstanding anything contained in any other law for the time being in force. They have contended that under sections 14 and 35 of the Sindh Local Government Ordinance, 2001 the City District Government Karachi has the power to appoint various group of the officers in respect of their work. Under clause (xxx) of Part-A of the First Schedule power has been given to create group of officers in respect of building and under clause
(J) of Part D, the Building Rules and plan standards can be promulgated. Under section 191(2) read with clause (3) of Part (ii) of 5th Schedule the power is given to City District Government Karachi to make bye-laws in respect of Zoning, Master Planning and Buildings. Under section 195 read with 6th Schedule the City District Government Karachi has general powers in respect of building control and issues related to buildings.
35. ' The learned Advocates for petitioners have given Comparative chart showing that Sindh Buildings Control Ordinance, 1979 and the Sindh Local Government Ordinance, 2001; both contained provisions in respect of Building Control which are analogous. The chart is as follows:-- {{TABLE}} SBCO, 1979 . SLGO, 2001 Approval 'of Plan , Section 6 Clause 24 Preparation of Plans Section 7 Clause 24 Violation of certain provisions Section 7-A Clause 31 Clause 32 Inspection of Building or Plot Section 11 Clause 33 Sale of Building Section 12 Clause 33 Dangerous Buildings Section 13 Clause 34 Power to make Rules Section 21 Clause 39 {{TABLE}} ' They have maintained that since 2001 an overlaping is existing in respect of powers to perform building control function within the city of Karachi. They have emphasized when a non obstante clause is inserted into a statute it indicates the intents of legislature to repeal all other laws in respect of the same subject-matter and therefore by virtue of section 3 of the Sindh Local Government Ordinance, 2001 containing the non obstante clause the Sindh Buildings Control Ordinance, 1979 is no longer a valid law in the light of the latest intention of the legislature. In support of their contention they have placed reliance on the doctrine of implied repeal in the treatise, "The construction of statutes by Crawford (1940 addition page 196)". They have further submitted that the doctrine of implied repeal was considered by a full bench of Madras High Court in the case of Gunepallay Thamamaya v. Sri Rajah Tyadapusapati AIR 1930 Madras 963 and was held as follows:-- "The question then arises when there is a conflict between two such special Acts each of which may be described as special in some particular sense, how far the later Act should prevail over the earlier Act. In such cases, it would seem that the rule is that the Court could lean against repeal of the earlier Act by implication and unless it is absolutely clear that the operation of the first Act has to be curtailed by the Act, the previous Act should he held to continue in force, even though the later Act may be regarded as special in some sense."
36. ' They have contended that Sindh Buildings Control Ordinance, 1979 is special law in respect of Building Control for the province of Sindh and the Sindh Local Government Ordinance, 2001 is also special law vesting building control powers in the Local Government. They have further submitted that in various decisions the Honourable Supreme Court of Pakistan while discussing principle of implied repeal has laid down the dictum that "repeal by implication is merely the consequences of contradictory or inconsistent legislation to which the Courts must give effect if the inconsistency cannot be reasonably reconciled".
37. ' They have submitted that there are tremendous inconsistencies between the two Ordinances and therefore the Sindh Buildings Control Ordinance must be held to have been impliedly repealed. In continuation of contention they have submitted that power to make bye-laws was given to both the authorities i.e, the authority under the Sindh Buildings Control Ordinance, 1979 and the City District Government Karachi under Sindh Local Government Ordinance, 2001. According to them if the Sindh Buildings Control Ordinance, 1979 is held to be impliedly repealed in 2001, then actions taken by any authority under the provisions of Sindh Buildings Control Ordinance, 1979 including the making of regulations are void. Consequently any actions taken on the basis of power conferred under the void statute are also void and prima facie no building constructed in Karachi under the Sindh Buildings Control Ordinance, 1979 is illegally constructed being based on a void approved plan. They have submitted that generally a void act cannot even be rectified but an exception to the concept of void act has been identified by the Honourable Supreme Court of Pakistan and by this Court in a number of decisions applying the de facto doctrine. They have therefore submitted that any building currently under construction or that has been constructed, the approved plan of which has not been challenged in any Court of law will be saved under the de facto doctrine as legitimately constructed. However no new case will be maintainable against any completed construction on the basis that the approved plan was illegally issued. They have further submitted that the Town Planning and Building Control are two contrary functions to the extent that the same cannot co-exist. According to them it would be difficult to even consider a comparison between the two such different functions to consider whether they were consistent and same. They have further submitted that entire part II of the Karachi Building Control and Town Planning Regulations, 1979 is inconsistent with the provisions of Sindh Buildings Control Ordinance, 1979 and are therefore void. However they have conceded that the validity of Karachi Building Control and Town Planning Regulations, 1979 have been upheld in two decisions of Honourable Supreme Court of Pakistan.
38. They have argued that the arguments raised in this petition were not raised at any other forum at any time and therefore in the decisions of Honourable Supreme Court there is no discussion in respect of impact of provision of Building Control in the Sindh Local Government Ordinance, 1979 and the provisions contained in Sindh Buildings Control Ordinance, 1979. In this regard they have lastly submitted that the building control being in the subject-matter of Sindh Local Government Ordinance, 2001, shall have effect notwithstanding anything contained in any other law for the time being in force on account of non obstante clause under section 3 of Sindh Local Government Ordinance, 2001 giving over riding effect to the provision contained in the said ordinance. The authority in respect of building control vests in the City District Government Karachi and not in the authority constituted under section 4 of the Sindh Buildings Control Ordinance, 1979.
39. ' Without prejudice to the above arguments the learned Advocates for the petitioners have submitted that power to make rules under Sindh Buildings Control Ordinance, 1979 is contained in section 21. They have submitted that the Karachi Building Control and Town Planning Regulations, 1979 were specially enacted by making the amendment to the Act which is distinguished from the Karachi Building Control and Town Planning Regulations, 2002 which were made specifically under the provisions of section 21-A. Being in the nature of delegated legislation, the subject-matter of regulations cannot be beyond scope of the Act. It is submitted that the Sindh Buildings Control Ordinance, pertains only to the question of Building Control and the Authority created thereunder has no right to pass Regulations pertaining to Town Planning. Those Regulations necessarily need to be passed under the Sindh Local Government Ordinance, 2001 or the Sindh Town Planning Act, 1915. They have referred to various provisions contained in the Karachi Building Control and Town Planning Regulations, 2002 as beyond scope of the Ordinance and consequently void. They have further submitted that the respondent No,2 had no jurisdiction to approve the building plan which power is specifically vested with the respondent No,1 and therefore the approval is illegal. Realizing that the plea of implied repeal and the point pertaining to the legality of the Karachi Building Control and Town Planning Regulations, 2002 were not raised in the petition, they have submitted that a person cannot approbate and reprobate as to the facts but it is open to the litigants to raise any point of law during the course of the proceedings. It is open to the Court to permit the cause to raise points of law at any stage of the proceedings and give all other counsel adequate opportunity to argue the case on merits. Reliance has been placed in this behalf on the decision of Honourable Supreme Court in the case of Haji Abdullah Khan v. Nisar Muhammad Khan PLD 1965 SC 690.
40. ' Elaborating further their contentions the learned Advocates for the petitioners have submitted that there is a basic distinction in Town Planning and the Building Control. The Town Planning is confined to the planning before constructions and the Building Control pertains to the approval of the Building Plans. They have further submitted that admittedly the impugned plot is residential in nature meaning thereby that it was to be utilized for the purpose of construction of Bungalow and it cannot be used for the construction of the flats as the residential plots belong to distinct category from the flats sites which have been categorized separately even in the Regulations 2002.
41. They have submitted that taking the contentions raised by them into consideration it may be declared that Sindh Buildings Control Ordinance, 1979 and the Regulations, 2002 framed thereunder are no more valid piece of legislation and the Building Plan approved thereunder is void and consequently the construction raised or to be raised has no sanction in law and is liable to be demolished.
42. ' Mr. Manzoor Ahmed learned counsel for respondents Nos.1 and 2 Mr. Khawaja Baddeuzzaman Town Building Control Officer have submitted that the lessor in the case of impugned plot is the City District Government, Karachi being successor of original lessor Karachi Municipal Committee and has given no objection to the approval of Building Plan submitted by the respondents Nos.12 to 14 with the clarification that on thorough examination of the application for approval of Building Plan they have found that the proposed Building Plan is in accordance with the lease/land grant terms and conditions and relevant restrictive provisions and that the proposed Building Plan of the plot in question is for residential purposes and they have no objection for approval of the proposed Building Plan according to bye-laws of Karachi Building Control Authority, 2002. This NOC was given by letter dated 8-7-2003 and in reply to the clarification sought by the Building Control Department. It is further stated in their letter dated 17-7-2003 that the City District Government has no concern regarding allowing of floors of the plot. Karachi Building Control Authority may allow the floor on the plots as admissible under the lease and bye-laws of Karachi Building Control Authority.
43. They have submitted that in pursuance of the above NOC and clarifications the Building Plan has been approved in accordance with the provisions contained in the bye-laws of Karachi Building Control Authority, 2002 and there is no violation, relaxation or deviation of bye-laws while granting the approval to the Building Plan. They have further submitted that in the Karachi Building and Town Planning Regulations, 2002 Zoning of the Old City Areas has been made and the Bath Island quarters, where the impugned plot is situated has been placed in Zone B under paras.25-9.2 of the above Regulations and the floor area which it to be utilized for residential uses is 1:2 and while approving the plan all the provisions contained in the Regulations, 2002 have been strictly kept in view and therefore the approved plan and the construction thereunder are in accordance with the law and are not open to any exception.
44. ' Mr. Kamal Azfar learned counsel for respondents Nos.3 and 4 has contended that the main arguments addressed by the learned Advocates for the petitioners are at variance with the pleading and the relief sought. He has pointed out to the declaration sought in para,'C' of the prayer clause to the effect that impugned plot cannot be converted from Low-density residential plot to High Density flat sites by respondents Nos.1 to 3 without complying with the mandatory provision of Regulations, 2002 and the KDA Order, 1957. He has submitted that so far KDA Order, 1957 is concerned it stands repealed and is no more law for the time being in force. He has stated that he subscribes to the prayer that the Building Plan cannot be approved without complying with the mandatory provisions of Regulations, 2002 and has no objection if the petition is allowed in these terms, provided any violation of or deviation from any provision of Regulations, 2002 is shown. He has submitted that it is the question of fact and the learned Advocate for the petitioners have not shown that any part of the approved plan is contrary to or violative of the Karachi Building and Town Planning Regulations, 2002.
45. ' Replying to the contentions raised by the learned Advocates for the petitioners Mr. Kamal Azfar has submitted that according to the petitioners, the conditions of the sale of the land in Bath Island provide that no Building can exceed more than three storeys including ground floor, and two third area of the plot is to be left as open space. He has submitted that the learned Advocates for the petitioners are relying on the conditions of the sale while ignoring the terms and conditions contained in the lease deed which is actual contract between the lessor and the lessee. He has submitted that no such condition is contained in the lease deed itself which has been annexed as Annexure III-B to the petition. He has pointed out that clause 5 of the conditions attached to the lease deed states as follows:-- "(5) The lessee shall comply with and observe all the rules and Bye-laws of lessors for the time being in force." He has submitted that presently the rules and Regulations which are in force are the Karachi Building and Town Planning Regulations, 2002. On factual plane the approval of the Building plan is strictly in accordance with these Regulations. He has supported the contentions of Mr. Manzoor Ahmed, to the effect that Bath Island quarters is situated in Zone B under clause 25- 9.2, under which the floor area in the Bath Island for residential uses is 1:2 and the Building Plan is in accordance with this ratio. He has submitted that according to this ratio the floor area comes to 45,000, feet while the approved floor area in the Building Plan is 44914 sq. Feet which is less than permitted limit. He has further submitted that open space has also been left according to the Regulations, 2002 and the petitioners have not alleged any specific violation of Regulations, 2002 in the approved plan. He has further submitted that the respondents Nos.3 and 4 would be obliged to take action against Builders if any deviation is established. He has argued that there is no conversion of the plot of land from residential to any other purpose as the flats will also be exclusively for residential purpose."
46. ' He has next argued that the population of Karachi according to the census 1901 was one lac and six thousand and as in the course of the 20th century multiplied by more than hundred times. At the time when the Bombay Town Planning Act, 1915 (Sindh Town Planning Act, 1915) was enacted the Karachi was part of Bombay Province. According to him the Karachi City, with the passage of time has grown up as Industrial, Financial and Commercial Capital of Pakistan, and therefore, the concept of Town Planning applicable to a city with the population of approximately one million in 1950 when the conditions of the sale of the plots in Bath Island were advertised have become obsolete and does not apply to metropolitan of 15 million.
47. ' He has further submitted that section 21-A was inserted in the Sindh Buildings Control Ordinance, 1979 by the Provincial Assembly which has the power to enact laws in the matters pertaining to the Provincial matters. He has further submitted that the provisions contained in section 21-A(3) are very clear and there is no ambiguity in it. According to him the Regulations pertaining to Bath Island in the Karachi and Town Planning Building Regulations, 1979 and 2002 Regulations are same.
48. He has urged that the doctrines having recognition in the English law are not applicable to Pakistan which has its own system and law, and particularly the fields in which the statute law is available.
49. He has submitted that the judgments from English jurisdiction have considered the provision of law prevailing in England which cannot be followed in Pakistan, because it has not been shown that any analogous provisions are holding field in the Pakistan statutes, Federal or Provincial. He has argued that the concepts of common law are not to be imported while considering the legal state of affairs in Pakistan and the issues of law in Pakistan are not to be considered with reference to the statutory provisions for the time being in force in Pakistan. He has maintained that the Regulations 2002 have been recognized to have statutory force which has been conceded by the learned Advocate for the petitioners as well, therefore, the respondents Nos.3 and 4 are bound to implement the provisions contained in these Regulations. He has submitted that these Regulations were framed after public notices and number of public hearing and the change in conditions applicable in Bath Island area were explicitly contained in the draft Regulations. It would have been fit and proper if the petitioners had filed their objections to the draft Regulations at the time of public hearing. He has further submitted that it is not feasible to impose upon Metropolitan Karachi, the concept of Town Planning in 1915 or half century back, when the Bath Island scheme was advertised, more particularly when there is no other Town Planning and the Building Regulations framed under the Act of 1915 or any other law. He has argued that in the event Regulations, 2002 are struck down, it would create total anarchy and the builders ' would be at liberty to build according to their whims which would cause much greater damage to the Karachi including the petitioners.
50. ' He has further contended that doctrine of implied repeal is not available. In this regard he has submitted that Sindh Town Planning Act was promulgated in the years 1915. Thereafter various Local Government Acts and Ordinances were enforced in Karachi from time to time containing provisions regarding Building Control and Town Planning. It has never been alleged that these enactments which also contained provisions relating to Town Planning and Building Control have impliedly repealed Sindh Town Planning Act, 1915. While tracing out History of Laws in this behalf, he submitted that the National Assembly of Pakistan enacted the Karachi Improvement Trust Act, 1950, for the purpose of framing master plan for Town Planning and Building Control for the whole of Karachi, where different statutory bodies were vested with ownership and control of different areas. The Karachi Improvement Trust Act, 1950, contained the reference to Sindh Town Planning Act, 1915 and it was specifically provided in section 147 of the Karachi Improvement Trust Act, 1950 that the Karachi Improvement Trust Board may exercise power under Sindh Town Planning Act, 1915. The Karachi Improvement Trust Act, 1950 was repealed by the Karachi Development Authority Order, 1957. Similar powers were vested in the Karachi Development Authority for Building Control and Town Planning. The Karachi Development Authority Order, 1957 also makes a reference to the Sindh Town Planning Act, 1915 in section 123. In pursuance of these provisions and after due deliberation and number of hearings the Karachi Building and Town Planning Regulations of 1979 were framed. The Provincial Assembly through section 21-A(3) of the Sindh Buildings Control Ordinance, 1979 introduced in the year 1982 enacted that Karachi Building and Town Planning Regulations, 1979 be deemed to be the Regulations framed under section 21-A.
51. ' Replying to the contention that the Town Planning is beyond the scope of Sindh Buildings Control Ordinance, 1979, for the reason that the Building Control and Town Planning are two distinct subjects totally independent of each other and therefore the Town Planning Regulations cannot be saved or protected by the Sindh Buildings Control Ordinance, 1979, Mr. Kamal Azfar has submitted that the arguments do not have any weight because it is not disputed that Provincial Assembly of Sindh has the power to enact laws relating to the Town Planning. By amending Sindh Buildings Control Ordinance, 1979 in the year 1982, the Regulations, 1979 were validated by the Provincial Assembly of Sindh. The fact that the Sindh Buildings Control Ordinance, 1979 does not contain the words "Town Planning", in its title, cannot override the express intention of the legislature which includes the Town Planning.
52. ' He has pointed out that section 8 of the Sindh Buildings Control Ordinance, 1979 deals with the Town Planning and the Notification dated 4th April, 2002 notifying the Regulations expressly contains that it has been issued in exercise of the powers conferred by section 21-A of the Sindh Buildings Control Ordinance, 1979. Mr. Kamal Azfar has submitted that like its predecessor statutes the Sindh Buildings Control Ordinance is a composite statute dealing with the matters relating to the Building Control as well as Town Planning and therefore it is not proper to say that the Regulations, 2002 are ultra vires or beyond scope of Sindh Buildings Control Ordinance, 1979 which exclusively deals with and is confined to the matters relating to the Building Control. In support of his contention he has relied on the principle laid down by the Honourable Supreme Court in the case of Pir Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66 as below:-- "As to the contention of Mr. Khalid Anwar that title of the Article indicates that it relates to issue and execution of processes of the Court etc., suffice it to say, the words of a title may be referred to in construing the statute in order to discover the intention of the Legislature where the meaning of any section or sections is doubtful. Here the words used in Article 187 are clear and unambiguous, therefore, in construing the same, aid to its title cannot be invoked. Refer Construction of Statutes by Crawford at page 123, 1940 Edition, wherein it has been observed that the title is no part of an Act."
53. ' He has further submitted that there is no ambiguity in section 21-A(3) of the Sindh Buildings Control Ordinance, 1979 and the Honourable Supreme Court has held in several decisions including Abdul Razak v. KBCA PLD 1994 SC 512, that the Regulations framed under the Sindh Buildings Control Ordinance have statutory force and that the earlier Regulations of 1979 were validated by subsection (3) of section 21-A of the Sindh Buildings Control Ordinance, 1979. He has specifically referred to the following observations by the Honourable Supreme Court:-- "To reduce the miseries of most of the Karachites, it is imperative on the public functionaries like the Authority to ensure the adherence to the Regulations. However, it may be clarified that it may not be understood that once a scheme is framed, no alterations can be made."
54. ' He has also placed reliance on the following passage from the above judgment of the Honourable Supreme Court:-- "However, the Ordinance was promulgated in March, 1979, with the object to regulate the planning quality of construction and building controls prices charged and publicity made for disposal of buildings and plots by builders and Societies and demolishing of dangerous and dilapidated buildings in the Province of Sindh. It may be observed that section 21-A(I) empowers the Authority to frame regulations not inconsistent with the provisions of the Ordinance and the rules made thereunder for carrying out the purpose of the Ordinance inter alia in respect of the items mentioned in subsection (2) thereof. However, subsection (3) thereof lays down that the Regulations shall until the same are framed under the above section, be deemed to be the Regulations so framed provided that they are not inconsistent with the provisions of the Ordinance and the rules framed thereunder."
55. ' Mr. Kamal Azfar has submitted that the Honourable Supreme Court in the above extract has used the words planning keeping in view that the Sindh Buildings Control Ordinance 1979 was promulgated not only with the object of Regulating the building control but also Town Planning. He has submitted that the law enunciated in Abdul Razzaq's case was reiterated/ reaffirmed in the case of Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423 as follows:-- "(34) In section 21-A(3) of the Sindh Buildings Control Ordinance, 1979, as stated above, the words "to be deemed to be Regulations" have been used in the circumstances mentioned above, which clearly show that Karachi Building and Town Planning Regulations, 1979 were in existence and already available, and were to be acted upon until fresh regulations were framed as provided under section 21-A(I) of the said Ordinance. Therefore, words "to be deemed" have not been used to connote something which is imaginary and nonexistent but refers to specific regulations which were in existence and comprehensive. Even if they are not published in the Gazette under this Ordinance or under any other previous law, then also as draft regulations they have complete statutory sanction conferred upon them by section 21-A(3) by naming them specifically. Hence, they can be construed and acted upon as regulations for the purposes of this Ordinance until fresh regulations are made provided these Regulations as such are not inconsistent with provisions of this Ordinance and rules framed thereunder."
56. ' He has next placed reliance on the finding of the Honourable Supreme Court in the case of Excell Builders v. Ardeshir Cowasjee 1999 SCMR 2089 wherein the law laid down in Messrs Multiline Associates case has been reiterated as follows:-- "(8) In any case, the above factum loses significance in view of the fact that the Regulations have the statutory force by virtue of subsection (3) of section 21-A of the Ordinance as held by this Court in the case of Multiline Associates v. Ardeshir Cowasjee and others (PLD 1995 SC 4231. The above Regulations are to be enforced by K. B.0 . A. Which is the Authority competent under the Ordinance to grant approval of a building plan and, therefore, K.B.C. A. Is under statutory obligation to provide setback or cutline or building line of a proposed building as per Regulations while according approval to its plan. Additionally, section 2 of the Ordinance provides that nothing contained in any other law for the time being shall apply to any matter regulated by this Ordinance. The above section 2 would override the above Article 85 of the Order to the extent of inconsistency.
57. ' Mr. Kamal Azfar has urged that the contention of the learned counsel for the petitioners regarding restrictive covenant is based on the citations from English jurisdiction. They are not relevant because laws of Pakistan differ from the laws of the England on this subject. In this behalf he has placed reliance on the law enunciated by the Honourable Supreme Court in the case of Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423 upholding the view taken by Sindh High Court in the case of Nasir Ahmed v. Muhammad Ahmed (1984 CLC 340). The Honourable Supreme Court held as under:-- "(38) In the case of Muhammad Munir v. Ahmed Ally Memon and 2 others (PLD 1982 Karachi 425), learned Single Judge has traced the relevant history of statutes and circulars governing town planning and construction of buildings in Karachi in a suit for declaration and injunction relating to a plot in dispute between the parties, situated in Garden East, Karachi. The suit was filed in the year 1979 on the ground that the Collector of Karachi has issued a Circular in the year 1938, which required that no building other than bungalow, or a cottage could be constructed on a building plot but flats of a superior type may be permitted by the Collector at his discretion provided that the number of tenements in any one building plot shall not exceed four with other conditions also prescribed. It was also contended that the Circular was in the nature of restrictive covenants running with the land and was binding on all the lessees. In that case, the owner of the plot proposed to construct Ground plus Four floors. It has been held that it was clear from the evidence that since 1964 permissions had been granted for constructing multistoreyed buildings in the Garden East area and since then plans for eleven multistorey buildings had been approved. No attempt was made to establish that such permissions were granted after obtaining no objection certificates from neighbouring landowners. It was held that the Circular of 1938 did not seem to have been in full force. It was also held that by Notification Provincial Government had unauthorized the Karachi Municipal Corporation to levy and realize fee at the rate of Rs,15 per square yards of total area of the plot per floor on construction of additional floors beyond original permissible limits.
58. ' This clearly shows that multistoreyed buildings are allowed to be constructed in any area on the payment of required fee subject always to the Building Rules and Regulations. It was further held that after payment of charges of K.M.C., restriction, if any, imposed on height or number of storeys deemed to have been revoked.
(39) The same view has been taken in the case of Naseer Ahmed v. Hafiz Muhammad Ahmed and 17 others (1984 CLC 340), in which the Division Bench has held that breach of restrictive covenants in respect of leases of urban lands could be resisted by a lessor alone and not by other lesses unless there was tangible evidence that their rights as lessee will be infringed."
59. ' In the case of Naseer Ahmed v. Hafiz Muhammad Ahmed issue of restrictive covenant was discussed as follows:-- "(8) It appears from a copy of lease transfer deed of one of the plots thereto the respondent placed on the record that the plots were leased/transferred for residential purpose and one of the covenants of lease/transfer of the plots was that the lessee/transferee shall not bring any change in the approved structure on the plot without permission of the Karachi Development Authority.
60. Admittedly, the appellate in the present case did not obtain permission from the competent authority or putting the premises leased/transferred for residential purpose to the commercial use.
61. But the question of breach of covenants rests between the lessor and the lessee. Similar questions of restrictive covenants were considered in the following cases:--
(i) Moosa Bhaiji v. Hashwani Sales and Services Ltd. And others PLD 1982 Kar.940;
(ii) R. G Sehwani Co-operative Housing Society Ltd. v. Haji Ahmed and others PLD 1983 Kar.11;
(iii) Muhammad Munir v, Ahmad Ally and 2 others PLD 1982 Kar.425.
62. ' In all the three case, it was held, inter alia, that breach of restrictive covenants in respect of leases of urban lands could be resisted only by the lessor. In the instant case, only the lessors, namely the Karachi Development Authority, could have cause of action to resist the conversion of the premises. The respondents 1 to 6 (the plaintiffs in the suit) are only the lessees of the adjoining nearby plots on the same terms and conditions as are applicable to the appellant. They do not have actionable cause of action to resist breach of restrictive covenant by the appellant unless there is tangible evidence that their rights as lessees will thereby be infringed."
63. ' Mr. Kamal Azfar has submitted that the concept of restrictive covenant is alien to the law prevailing in Pakistan and in the case of land under consideration, the use whereof is to be governed by the terms of the lease deed which specifically provides that building on the land shall be constructed according to the rules and regulations for the time being in force, and the law prevailing in Karachi is the Regulations, 2002.
64. ' In respect of the plea pertaining to the implied repeal Mr. Kamal Azfar has submitted that Honourable Supreme Court has taken view in the case of Mumtaz Ali Khan Rajban v. Federation of Pakistan PLD 2001 SC 169 that implied repeal cannot be attracted unless intention is clear and unambiguous. The Honourable Supreme Court has held as follows:--.
65. "(9) As regards the plea of alleged repeal of the Act, 1975 by necessary implications, it is significant to note that the general rule is that no repeal can be implied, unless there is an express repeal of an earlier Act by the later Act, or unless it is established that the two Acts cannot stand together."
66. ' Mr. Kamal Azfar has submitted that instead of adverting to implied repeal, the principle of harmonious interpretation occupying the same field should be adopted. According to him the Provincial Government of Sindh in exercise of the powers vested in it appointed the Nazim, City District Government Karachi to act as authority for the purposes of the Sindh Buildings Control Ordinance, 1979 and further in exercise of the powers conferred by section 14 of the Sindh Local Government Ordinance, 2001 declared 16th group of officers in City District Government, Karachi under the name and title "Building Control Group of Officers". He has submitted that the building ratio for the Bath Island in the zoning scheme contained in Regulations, 2002 is same as in the Regulations, 1979 which has protected and saved under subsection (3) of section 21-A of the Sindh Buildings Control Ordinance, 1979 and therefore the approved plan is within the framework of the Karachi Building and Town Planning Regulations, 1979, as well as the Regulations, 2002.
67. ' Mr. Abid Zuberi learned counsel for respondents Nos.12 to 14 has submitted that the land under consideration admeasuring 2500 square yards was originally owned by the defunct KMC. It was sold by auction on 6-1-1952. A lease of plot was executed between the KMC the predecessor of CDGK and predecessor of respondents Nos.12 to 14 on 26-5-1958. It is provided in clause (8) of the lease deed that the plot shall be used for the residential purposes only and shall not be diverted to other use without express consent in writing of lessor. The terms and conditions of the lease did not restrict the construction of any number of the floors or to any height. It is provided in clause (5) of the lease, that the lessee shall comply with and observe all the rules and Bye-laws of lessor for the time being in force. He has reiterated the plea taken by other respondents that the land used is to be governed by the terms of the lease deed and the law prevailing for the time being in force, and not by the land sale notice dated 6-1-1952. He has further submitted that there was no development scheme applicable to Bath Island quarters although there were several other schemes for other areas of the old city. He has submitted that the building plan has been approved by the competent authority after NOC from the City District Government strictly in accordance with the provisions contained in Sindh Buildings Control Ordinance, 1979 and Karachi Building and Town Planning Regulations, 2002 keeping in view the Zoning Regulations/area standards applicable to Bath Island quarters. He has contended that there is no deviation from the approved Building Plan. He has also pleaded that the petition is barred by laches and that the petitioner has not challenged the validity of Sindh Buildings Control Ordinance, 1979 or Karachi Building and Town Planning Regulations, 2002 in the petition but has challenged the validity of these laws at the time of the arguments. He has further submitted that the petitioners sought compliance of the provisions of KDA Order, 1957, which already stands repealed in the year 2002. He has mentioned that several Buildings up to the height of 5th floor were constructed in Bath Island area ever prior to the notification of Karachi Building and Town Planning Regulations, 2002, the list whereof has been attached with the counter-affidavit. He has reiterated that a Division Bench of this Court has already held in the case of Naseer Ahmed v. Muhammad Ahmed 1984 CLC 340, which has been approved by the Honourable Supreme Court, that breach of restrictive covenant in respect of the leases of urban land could be resisted by the lessor alone and not by other lessees unless there was tangible evidence that there rights as lessee were infringed, and no such evidence has been produced by the petitioners. He has argued that the English law is not to be followed by the Pakistani Courts and section 11 of the Transfer of the Property Act clearly contains an express bar on the imposition of restrictive covenants, as to the transfer of absolute interest in immovable property. He has further submitted that in a recent pronouncement, the Honourable Supreme Court has held in the case of Abdul Razak Adamjee v. Messrs Datari Construction Company 2005 SCMR 142 as follows:-- "(18) After elaborately and competently discussing the law as well as case-law on the subject regarding the authority of the authorities to give sanction for a high rise building vis-a-vis the rights of the neighboring people, from page 31 to page 40, the learned Division Bench has rightly arrived at the conclusion. "That mere violation of municipal rules or plan or a mere violation of Sindh Buildings Control Ordinance or Regulations or plan is not actionable per se unless an injury, real or apprehend, is established by the persons in whose interest and for whose protection the rules or regulations are framed"; and further, that any injury sustained or apprehended needs to be proved through evidence with strict reference to the circumstances of each case."
68. "(19) The existence of nuisance occurring or apprehended is a pure question of fact which, in cases of permanent injunction or damages, is bound to be proved through evidence. The evidence led by the parties in the instant case is thoroughly appreciated by the trial Court as well as the First Appellate Forum. They have concurrently held that in view thereof, the factum of nuisance is not proved. The only thing seemingly proved on record is a mere apprehension of the two plaintiffs and not of the public at large that the construction of high rise building in dispute would result into host of problems amounting to public nuisance. This apprehension at this stage is not only subjective but also abstract. The authorities discussed in the impugned judgment are rightly relied upon consequently upon the observation that inconvenience or annoyance or discomfort, to be considered in a particular case, must be more than. "Mere delicacy of fastidiousness and more than producing sensitive personal discomfort or annoyance. Such annoyance or discomfort or inconvenience must be such which the law considers as substantial or material." What law demands to be more than mere delicacy or sensitive personal discomfort, has not been proved in the instant case."
69. ' He has next submitted that in Regulation No,2-107 of the KBTR, 2002 "residential building" has been defined to mean building constructed for residential purposes, e.g., bungalow town house, flats and such other buildings and in Regulation 2-52 the definition of flat site has been given to mean plots designated as such for multifamily residential uses.
70. ' Mr. Abid Zuberi has submitted that in C.P. No,D-549 of 1997 Mr. Naeem-urRehman took plea before a Division Bench of this Court while objecting to the construction of multistoreyed flats in civil lines quarters that the plot earmarked to construction of residential bungalows could not be converted into flat sites as such construction would adversely affect the petitioners' facilities as well as the right to quiet and peaceful enjoyment of the property and the fundamental rights to live in a congenial and hazard free environment. In another connected C.P. No,550 of 1997 objection was raised to the construction ofmultistoreyed building in the Civil Lines quarters on a plot admeasuring 4300 square yards. It was contended that the construction of ground + one floor residential bungalow was permitted while Karachi Building Control Authority approved plan for construction of ground + four floors building comprising 60 flats.
71. ' On behalf of the builders a plea was taken inter alia that the residential flat like bungalow was also a residential accommodation and as long as the flats were not being used for any commercial purposes, the provisions prohibiting change of land use contained it the Town Planning Regulations, were not attracted. Another plea was taken by Mr. Naeem-ur-Rehman in those petitions that two plots on which flats were being constructed were located in residential area and originally residential bungalows were allowed to be constructed and the permission to raise multistoreyed flats amounts to change of land user which could only be effected after following a specific procedure under the Town Planning Regulations which included inviting public objections.
72. Since such procedure was not followed before approval of plan of KBCA therefore it was not lawful and the construction was liable to be demolished. On behalf of the builders it was contended that under the Regulations, a construction of multistoreyed apartment for residential purpose does not amount to conversion of residential plot for any other purposes unless the proposed construction also involved used for commercial purposes. The contentions raised by Mr. Naim-urRehman were repelled by the Division Bench of this Court in the judgment dated 9-8-2001. Mr. Abid Zuberi has submitted that an appeal was prefrred against the Division Bench's judgment-of this Court before the Honourable Supreme Court which was withdrawn. He has produced certified copy of the order of the Honourable Supreme Court dated 17-9-2003.
73. ' We have given our anxious consideration to the contentions raised, material placed on record, pleas taken and the case-law relied upon.
74. ' First we would take up the plea pertaining to restrictive covenant. This plea was taken in the case of R. G. Sehwani Cooperative Housing Society v. Haji Ahmed PLD 1983 Karachi 11. Saleem Akhtar, J.
75. (as his lordship then was) while considering the plea that the conditions of the lease, amount to restrictive covenant, and right in rem attached with the land and the plea in rebuttal that a restrictive covenant runs with the land for the benefit of lessor and it should not be absolute and can be waived expressly or by necessary application, observed that, the stipulation of the lease are no doubt enforceable by KMC. It was considered whether it can be enforced by any third party or adjacent neighbour, and it was observed that lease is an agreement between two parties and therefore only party to agreement can enforce it. It was held that the enforcement of the stipulation of the lease was in the discretion of the lessor and that under the clauses of the lease and with the previous consent of the KMC in writing, the use of the plot can be diverted and the construction can be raised on more than one third area of the plot. The plea that if there is a condition of restrictive covenant in the lease deed, the same can be enforced by the lessor and none else was upheld. It was observed that the KMC (lessor) had no objection to the construction of the multistoreyed building on more than one third area of the plot and therefore the conditions imposed by the lessor shall be deemed to have been waived It was further observed that the afore-stated clauses in the lease deed do not impose absolute prohibition and permit the deviation provided KMC gives its sanction in writing. It was further held that the KMC by its conduct granted permission to construct multistoreyed building and therefore the restrictive covenants cannot be enforced. It was also observed that with the passage of time the localities which were exclusively for residential purposes, under the pressure of human need are being converted into commercial use with the consent and approval of KMC and the relevant authorities. The entire complex of the area has completely undergone a phenomenal change. Previously there were bungalows but they have been replaced by multistoreyed buildings or such buildings in which the ground floors have been converted for commercial use. Taking into consideration these facts and to keep pace with the time and to meet the needs and requirements of the locality, KMC has been granting permission to construct multistoreyed building and commercialized area. In this case reliance was placed on various judgments from English jurisdiction for the applicability of the principle of restrictive covenants, but it was held that they do not apply for the reason that restrictive covenant in the lease was not absolute and was conditional which could be varied with the consent of the KMC.
76. ' Mr. Naeem-ur-Rehman has vehemently argued that the use of the land under consideration is governed by the standard land use conditions and that the lease which was executed was subject to terms and conditions published at the time of the auction.
77. ' On the other hand Mr. Abid Zuberi has submitted that the land use of the plot shall be governed by the terms and conditions of the lease deed itself which does not contain any restrictive covenant.
78. He has taken us through the contents of the lease deed which was executed on 26-5-1958 between the KMC and the purchaser. We find substance in the contention that the use of the land is to be governed under the terms and conditions of the lease itself and not under the terms published for the purpose of auction. A perusal of the lease deed shows that on auction sale of the land belonging to KMC on 6-1-1952, under the rules for the management and disposal of the waste land within the municipal limits of the Karachi, framed by the KMC the purchaser was allowed to 'enter upon the said plot for the purpose of constructing building thereon in accordance with the terms and conditions marked out into convenient plots of such same are to be leased and in so doing shall on payment of full occupancy value, (b) set forth in the sale agreement and therefore lease deed for the period of 99 years was executed. The lease deed provides that the provisions of the rules on the terms and conditions specified in the lease deed. These terms and conditions are included in comply with and observe all the rules and bye-laws of the lessor for the time being in 2564 lessee shall hold the plot subject to the Clauses Nos.5 to 8 which have been referred to earlier.
79. Clause 5 is more relevant which provides that the lessee shall force. Mr. Naeem-ur-Rehman has admitted that the land was auctioned and the lease deed was executed under the rules for management and disposal of waste lands, within the municipal limits of the Karachi. A perusal of these rules sanctioned by the Government of Sindh under Authority of that under rule (1) it was provided that the Government on 14th October, 1929 shows lease issued by the Government in respect of any of the said land shall be continued on the terms and conditions contained in the said leases and shall for all purposes deemed to have been issued by the that the leases issued by the municipality in Municipality. In Rule (2) it was provided respect of any of the said land shall be conditions contained in the said leases. The similarly continued on the terms and rules pertaining to the leases for building the standing committee may from time to time cause any of the said land to be sites include rule (8) which provides that size as they consider best adopted to the locality and for the purposes for which the differentiate between plots intended for (a) sale by public auction of lease holder right sale by lease holders rights to Co-operative Housing Society (c) sale by public auction by lease holders rights on payment of full occupation value etc. In the year 1934 a proviso was added to rule 9 that whenever plots in any development area are to be leased the corporation shall first sanction the scheme for conservancy, waterpipes, light and roads and make programme of the same and get it sanctioned. Detailed procedure has been prescribed in the rules and in rule 12 it is provided that when the sale under rule 11 is duly approved and sanctioned and when the payment required by the said rules have been duly made the purchaser shall be given an agreement to lease in Form 'A' authorizing the purchaser to enter upon the plot for the purpose of constructing the building in accordance with terms and conditions of the sale. It was further provided in rule 13 that the building to be erected on the plot shall be of the clause specified under rule 26 and in accordance with conditions of the sale and the building so constructed shall be used only for the purposes specified in the condition of the sale. It was further provided in rules that on completion of building by the purchasers he shall be entitled for the lease for a period of 99 years on terms and conditions mentioned in Form B. It was also specified in rule 13(5) that in constructing building the purchaser shall also comply with the provisions of municipal Act and building bye-laws in force for the time being. It was provided in rule 26 that before inviting offers or auctioning lease-hold rights in any land marked out under rule 8 (rule 8 deals with leases for the building site) the standing committee shall (a) fix the number of the buildings to be constructed on each of such plots, (b) fix the maximum area to be occupied by a building or buildings on each of such plots, (c) specify the style, clause and nature of the building or buildings to be erected on such plot or plots, (d) the space if any to be reserved for roads and (e) other particulars which the standing committee may deem necessary. It was further provided in rule 27
(a) that before constructing any building, the lessee or the intended lessee shall submit plan for the proposed building or buildings for the approval of the standing committee drawn up in accordance with the provisions of Bombay District Municipal Act, 1901 or any other statute in force for the time being or the rules or bye-laws framed under such statutes and in accordance with the rule 26 (emphasis provided by us) rule 27 had further taken care of alteration of the building plan and in clause (b) thereof, it was provided that if any alteration is intended the lessee shall submit a fresh plan for approval in accordance with the conditions specified in clause 'A' . The building plan was to be approved in accordance with the provisions of Bombay District Municipal Act, 1901 or any other statute in force for the time being or the rule and Bye-laws framed under such statutes. It was also provided in rule 38 that whenever in these rules the terms "Bomaby District Municipal Act, III of 1901" is used it shall mean the said Act or any other enactment for the time being enforce.
80. (Emphasis provided by us).
81. ' At this stage we would like to examine the contention repeated time and again by Mr. Naeem-ur- Rehman pertaining to the standard plan and the development scheme. Admittedly no development scheme has been prepared at any time for Bath Island area and thus in the absence of development scheme the question of any change in the area does not arise. It would be appropriate to further observe here that for several other old areas of the Karachi city, development schemes were prepared such as Garden quarters, Tehilram quarters, Lawrence quarters, Garden West quarters, Garden East quarters. The gazette notification in respect whereof has been produced by Mr. Naeem-ur-Rehman. So far the reference to standard plan is concerned it is also not relevant with reference to the plot of land under consideration. The city of Karachi Municipal Act, 1933 has used this expression in section 211. It is provided in this section that the Chief Officer by notice in writing may require the owner of any land which is intended for division into building sites to prepare and submit for his approval, within a period to be specified in such notice, a plan, drawn to some convenient scale to be specified in such notice, and signed in token of having been prepared by him or under his supervision by a licensed surveyor, and showing the streets which such owner proposes to construct on such land, the position and boundaries of building sites into which he proposes to devide such land. It is further provided that on receipt of above plan prepared as aforesaid, the Chief Officer shall submit it to the standing committee for approval thereof or for the direction of such alteration and amendment to be made therein as it shall think fit. Subsection (3) of section 211 of Karachi Municipal Act, 1933 further contains that if the said owner fails to submit the aforesaid plan within period specified, the Chief Officer may cause such a plan as is prescribed in subsection (1) to be prepared in accordance with the instructions of the standing committee, and shall cause a copy thereof to be delivered at the last known place of abode of such owner and to be affixed to some conspicuous position of the land. According to subsection (4) when a plan has been approved by the standing committee under subsection (2) or has been prepared under the instructions of the standing committee under subsection (3) it shall be known as -the "Standard Plan", of such land and copy thereof, signed by such person as may be authorized in this behalf shall be deposited in the municipal office and another copy a similarly signed shall be supplied on application to the owner of such land. It is prescribed in subsection (5), that except with the permission of the standing committee and in accordance with the terms and conditions of such permission, no person shall construct any street or erect any building on such land otherwise than in accordance with the such "standard plan" (emphasis provided by us).
82. ' The lease deed in respect of impugned plot was executed in the year 1958 when the Karachi Municipal, -Act, 1933 was in force. The concept of 'standard plan' referred to above is not releVant at all to the impugned land as it has. Not been shown that any such standard plan was prepared or was required to be prepared. The impugned plot according to Mr. Naeem-ur-Rehman was disposed of under the rules for management and disposal of the waste land within municipal limits of the Karachi and therefore the matters pertaining to the erection of building thereon is to be governed under the terms and conditions of the lease executed under the said rules and the provisions contained in the rules which have been discussed in detail by us. It is provided in the said rules that the erection of the building and approval of the plan shall be in accordance with the provisions contained under rule 27 read with rule 26 and rule 8 and rule 13, wherein it is specifically provided that the approval shall be granted in accordance with the provisions of the Bombay District Municipal Act, 1901 or any other statute in force for the time being or Rules and bye-laws framed under such statutes and that the term 'Bombay District Municipal Act III of 1901' shall mean the said Act or any other enactment for the time being in force. We will presently examine whether the Sindh Buildings Control Ordinance, 1979 and the Regulations, 2002 framed under section 21-A thereof have the statutory force and enactment for the time being in fore or not. It is necessary to do so because Mr. Naeem-ur-Rehman realizing that the Honourable Supreme Court has already held, in more than one judgments that Karachi Building and Town Planning Regulations framed under section 21-A of the Sindh Buildings Control Ordinance, 1979 has the statutory force, contended that the pleas raised by him in this petition were never raised earlier in any proceeding at any forum.
83. ' After coming to the conclusions that no development scheme was ever prepared for the Bath Island area, there is no standard plan for the Bath Island area, the condition of the restrictive covenant attached to the impugned land is to be governed in accordance with the law and Regulations for the time being in force, it can be enforced by the lessor only and non else and that the lessor has already given no objection for alteration in the land use in accordance with the Building Regulations, 2002, we proceed to examine, whether the doctrines or the concepts of development scheme, standard plan and restrictive covenants borrowed from English law/judgments are applicable to Pakistan.
84. ' It requires no emphasis that the local/municipal laws, (as laws of a particular country are termed in International law) are applicable to the particular country wherein they have been enacted. It would be against the concept of sovereignty of a State, if any attempt is made to apply legislative enactment's of one country to the territory of another country. It appears that there is still a view held by some person that Pakistan continues to be a colony of the Great Britain, and therefore they very oftenly try to make reference to the legislative enactments in the said country and the judgments interpreting such legislative enactments. This approach needs to be changed. We would like to observe that even when Pakistan was a colony of Great Britain governed by the Crown, the laws enacted by the British Parliament were never enforced in this part of the land.
85. Although statutes were enacted under sovereign authority of Crown, but they were never, enacted by the British Parliament. The colonial masters had always enacted separate laws for this part of the land. This part of the land was, governed by the Crown through the Secretary of the State for India and not through the British Parliament. It appears that in the same vein Mr. Naeem-ur- Rehman has contended that Britishers exported their concept of common laws to several countries including Pakistan, and in pursuance of this supposed premises, he has attempted to persuade us to decide this petition in accordance with concepts of common law of the England. With the highest regards for Mr. Naeem-urRehinan we are not impressed with the contention. It would be appropriate to observe that the English people have their own peculiar concepts under which they developed their system of common law. It was based on traditions, customs, conventions, collective practices and several concepts and doctrine accepted by their society and acted upon as the principle of law. However with the advent of constitutional and legislative enactment the statute law started prevailing over the common law concepts and it was recognized that the concepts of common law shall give way to the statute law because in spite of having unwritten constitution the British people believed strongly in the sovereignty of the Parliament. Thus whenever Statute law was enacted it invariably prevailed over the concepts of the common law. So far Pakistan or Sub-continent is concerned it never adhered to the concepts of the common law and has never been a common law country. This part of the world has been governed by the laws, rather than conventions and practices from the time immemorial. In the period before the arrival of the Muslims in Indian Sub continent we find references to the laws framed by Chanrakya (Kotilia) who belonged to Taxila and the law complied by Manu. After advent of Muslim rule in the Indian Sub-continent the uncodefied Islamic laws have been prevailing which comprehensively and exhaustively cover every branch, and . Every aspect of the human life. Looking to the local conditions laws were framed for the administrative purposes. A reference can be made to the land revenue laws framed by Raja Todarmal who at the relevant time was Revenue Minister of Shershah Suri and was subsequently a prominent Member of Cabinet of Emperor Akbar as Revenue and Finance Minister, which laws are still in force in major part of the Indian Subcontinent. After the reigns of Indian Government were taken over by predecessors the Britichers, they initially continued with the laws prevailing from earlier period and slowly and gradually they enacted their own Statutes and established a comprehensive and one of the most sophisticated system of law ever introduced or established in any part of the world. They never imposed or in the words of Mr. Naeem-ur-Rehman exported either Statutes meant for England or the concept of the common law in this Sub-continent. They separately enacted statutory laws for Indian Sub-continent and kept the system of law in this Sub-continent so distinct and separate from the system of the law prevailing in England that the House of Lords the apex Court in Britain was never the apex Court for the Indian Sub-continent, which was Privy Council. From this resume we find that this part of the world was never part of the common law system and was never governed by the Statute laws in force in England. Thus the concepts of the common law of the England and the English judgments based on the common law and the doctrines and concepts thereunder or based on the Statute laws enacted for Britain are not applicable to Pakistan.
86. ' Although the Indian Sub-continent was never governed under, the common law of England based on traditions, customs, conventions, norms and various concepts and doctrines thereunder and likewise was never governed by the statute law applicable to Britain and separate laws were framed for every field of activity, as demonstrated by us earlier, however for the purpose of interpretation of the laws some concepts of the common law of England as well as Roman law were employed by the English Judges administering law in the Indian Sub-continent. The superior Courts for the purpose of interpreting the statutes applicable to Indian Sub-continent adverted to few concepts of the common law of the England. But in respect of those few concepts also the principle in vogue in England were always applied. For instance, equity is the most well-known concept of common law. In England as well as Pakistan, India and Bangladesh the principle that equity gives way to statute has always been acted upon. The law of equity has never been applied to the field occupied by the statute law and principle has been evolved that there is no equity against the law. Likewise mens rea is another well-known concept of the common law of the England and while interpreting substantive criminal laws; this concept was treated as part of every law pertaining to the commission of offence, but this concept also which was treated at some time as absolute principle, became relative in terms, with the progressive march of the legal system. By now it is the accepted principle of interpretation of laws that in realm of welfare legislation, food laws, traffic laws etc. And all strict liability cases this concept shall give way to such laws.
87. Consequently when a country like Pakistan where the quality and society is governed F by statute laws, the doctrine and concepts based on traditions, customs and conventions are not relevant and cannot be enforced as a law, per se, but at the most few general concepts can be used as tools or aid for the restrictive purpose of interpretation of the laws.
88. ' So far the objections raised by the learned Advocates for the respondents to the maintainability of the petition on the ground that the petitioners have no locus standi and the petition suffers from the laches we are of the opinion that the petitioners cannot be non-suited on these grounds. The reason being that by now it stands authoritatively decided by the Honourable Supreme Court that it is not necessary for petitioners to establish the infringement of any fundamental right under the Constitution or a right under the statute. The interest in the property or matter or use thereof is sufficient to give entitlement for filing of a petition. It requires no elaboration that the expression interest in the property or matter or use thereof has much wider connotation than the expression right in the property. So far laches are concerned no hard and fast rules are applicable in this behalf. In some cases a delay of few months may be fatal and in some other cases the delay of 8 to 10 years can also be condoned. The law relating to laches is not as stringent as the law of limitation. In this case the petitioners have been pursuing the matter at various forums and consequently it is held that the petition does not suffer from laches.
89. ' Mr. Abid Zuberi contended that in fact main issue for considering is whether flats can be constructed on residential plot and this issue already stands decided by the Honourable Supreme Court in various judgments which are binding on this Court and therefore no elaborate discussion is required. We find substance in the contention and agree with the proposition that the Honourable Supreme Court has already decided the issue that flats can be constructed on a residential plot and it is held accordingly.
90. ' The issue whether the Karachi Building and Town Planning Regulations has the statutory force or not also stands decided by the Honourable Supreme Court in more than one cases. Mr. Naeem- urRehman has also conceded on this point. But he has contended that the issue of law raised by him in this petition to the effect that the Karachi Building and Town Planning Regulations are beyond the scope of Sindh Buildings Control Ordinance, 1979 and thus ultra vires illegal and void and that the Sindh Buildings Control Ordinance, 1979 itself stands impliedly repealed, therefore, the Regulations framed respondents Nos.12 to 14 while raising construction have committed any violation of or have deviated from the approved plan, or the approved plan is violative of the Regulations. Mr. Kamal Azfar has therefore argued that he has no objection if the petition is allowed in the terms that if there is any violation of the Karachi Building and Town Planning Regulations, 2002 or there is any deviation from the approved plan such construction be demolished. However since no violation or deviation has been established therefore the question of issuing any such direction does not arise.
91. 'There is another point whether giving of no objection by the City District Government, Karachi and approval of plan by Karachi Building Control Authority in accordance with the Karachi Building and Town Planning Regulations, 2002 amounts to vary the terms of the lease. Our answer to this point is in negative, because the consent/approval given by City District Government the successor of K.M.C., original lessor, is in pursuance of the terms of the lease and the rules governing it. Likewise permission to increase built-up area on the land in question which is in consonance with the zoning plan contained in the Karachi Building and Town Planning Regulation, 2002 is in accordance with the rules under which the land was auctioned/ leased wherein it was specifically provided that in constructing the Building the purchaser shall also comply with the provision of the Municipal Act and building bye-laws in force for the time being and that the matters pertaining to the erection of building shall be governed under the Bombay District-Municipal Act III of 1901, which shall mean the said Act or any other enactment for the time being in force and the laws for the time being in force are Sindh Buildings Control Ordinance, 1979 and the Karachi Building and Town Planning Regulations, 2002.
92. ' Now we take up contention raised by the learned Advocates, for the petitioners that the Karachi Building and Town Planning Regulations, 2002 as well as its predecessor Karachi Building and Town Planning Regulations, 1979 are beyond the scope of Sindh Buildings Control Ordinance 1979 and are therefore ultra vires, having no legal effect. This contention is based on the premise that the Sindh Buildings Control Ordinance, 1979 was promulgated to regulate the planning, quality of construction and Building Controls. The matters pertaining to Building Control and Town Planning are entirely distinct and separate therefore the scope of Sindh Buildings Control Ordinance, 1979 is confined to the approval of Buildings Plans, demolition of the buildings, quality of the buildings, supervision of the construction of the buildings, matters pertaining to the safe and sound construction, structural design of any building, grant of licence to architects, building designer, structural engineers, town planners builders and developers and the ancillary and incidental thereto and is not extended to the mattes pertaining to the town planning and does not include the land use classification, density standards, construction or roads and streets development plans, zoning regulations etc. ' We have carefully considered the contentions raised by the learned Advocate for the petitioners and the learned Advocate for respondents who have submitted that the Honourable Supreme Court has already held that the Karachi Building and Town Planning Regulations, 1979 have the statutory force and the Karachi Building and Town Planning Regulations, 2002 have merely replaced the earlier Regulations and therefore no scope is left for this Court to arrive at any conclusion to the contrary. The contention raised by the learned Advocate for respondents are not without substance as we are bound by the decisions of the Honourable Supreme Court. In addition to the above contention we find that section 21 of the Sindh Buildings Control Ordinance, 1979 empowers the government to make rules for the purpose of giving effect to provisions of this Ordinance. Under section 21-A the Authority has been empowered to frame the Regulations not inconsistent with the provisions of the Ordinance and rules made thereunder. Under section 18 the Government meaning thereby the Government of Sindh has been empowered to delegate any of the powers vested in it, to the Authority. The learned counsel for the petitioners have not contended that the Government of Sindh is not empowered to frame the Town Planning Regulations or the Provincial legislature of Sindh was not competent to enact subsection (3) of section 21-A of Sindh Buildings Control Ordinance, 1979 were given statutory recognition and had further made provision for framing of the Regulations. Notwithstanding the Sindh Buildings Control Ordinance, 1979 being a law predominantly dealing with the matters pertaining to the Building Control, the Provincial legislature has and always had the authority to enact laws pertaining to town planning. It may be a case of bad drafting by the draftsman but merely on account of inept drafting of legislation it shall not become a bad law. As the Provincial legislature had the authority to enact laws pertaining to the Town Planning, it could do it by enacting a separate statute in this behalf or through the delegated legislation by conferring power to frame the Regulations in this behalf on the authority under the Sindh Buildings Control Ordinance, 1979. The Provincial legislature could do it through amendment in any provincial law such as Sindh Town Planning Act, 1915. The Sindh Buildings Control Ordinance, 1979 or the Sindh Local Government Ordinance, 2001 or its predecessor law the Sindh Local Government Ordinance, 1979. So long the provincial legislature has the authority to enact laws pertaining to Town Planning no objection can be raised to the validity of law enacted under the authority of Provincial legislature by making amendment in any of the provincial law. It is advisable that if a law is' enacted particularly for dealing with the specific subject, the matters relating to such subject should be dealt with under, a , separate statute but if any matter or subject connected therewith, is dealt with by amendment in another special law it shall not become invalid, so long it is within the competence of the legislature under the Constitution. If something could be done in a particular manner but has been done in a manner which is not advisable, it shall not render the law, as invalid. Subsection (3) of section 21-A enacted by provincial legislature of Sindh, specifically speaks of Building Control and Town Planning and therefore if the authority has framed a composite regulation known as Karachi Building and Town Planning Regulations, 2002, then it would not become invalid merely because the Sindh Buildings Control Ordinance, 1979 deals predominantly with the matters pertaining to the Building Control. The Regulations have been framed in exercise of the powers conferred by section 21-A of the Sindh Buildings Control Ordinance, 1979 and admittedly subsection (3) of section 21-A specifically authorizes the authority under the Ordinance to frame the Building Control and Town Planning Regulation. For the purpose of validity and vires of delegated/subordinate legislation in the form of rules, regulations or notification it is sufficient if the particular section under which the recourse to delegated/subordinate legislation has been resorted to empowers to do so. We are therefore of the considered opinion that the Honourable Supreme Court while holding that the Karachi Building and Town Planning , Regulations, 1979 has the 'statutory force must have kept this principle of law in view and consequently it is held that the Karachi Building and Town Planning Regulations, 1979 and the Karachi Building and Town Planning Regulations, 2002 which has replaced the earlier regulations have been framed competently in exercise of the authority under section 21-A(3) of the Sindh Buildings Control Ordinance, 1979 and is therefore intra vires, legal, valid and has statutory force.
93. ' At this juncture we would like to observe that although the matters pertaining to the Building Control and Town Planning are not same and on all fours to each other, but the matters are so intimately and intrinsically connected and interwoven, that in almost all the laws on the subject enacted from time .To time and referred to by Mr. Naeem-ur-Rehman; contain the provisions pertaining to the Building Control as well as development scheme and the town planning. This is further evident from the fact that Mr. Naeem-ur-Rehman himself while arguing large number of petitions assailing the approval of building plans has made reference to the questions pertaining to utilities, roads, streets, environment, traffic, electricity, Gas, water supply, telephone, sewerage and other allied matters. The matters pertaining' to the zoning of areas, population density etc. Determine the ratio of permissible constructed areas and on the basis thereof the building plans are approved, therefore, it cannot be said that the Building Control and Town Planning are totally unconnected matters. As already observed they are of course separate and distinct but they are closely related and inter-dependant as well as co-existing, therefore, if a law enacted by the provincial legislature in the form of section 21-A(3) of the Sindh Buildings Control Ordinance, 1979 has authorized the authority under the Ordinance to frame the Building and Town Planning Regulations and under the said authority Regulations covering both the subjects have been framed in one piece of subordinate legislation, no objection can be raised to its validity. The contention is also contradictory to the arguments addressed by the learned Advocates for the petitioners themselves, with reference to the provisions contained in Sindh Town Planning Act, 1915.
94. They had contended that the scheme of the planning contained in the said Act covered several provisions such as drainage, lighting, water supply and height and character of the building to be built on the plot and if any deviation is made in the number, height or character of building which shall automatically affect the scheme of the town planning in the area. The learned Advocate for petitioners had referred to section 3 of Sindh Town Planning Act, 1915, which contains prosecution for planning scheme ,and inter alia provides for "the imposition of conditions and restrictions in regard to the open space to be maintained about buildings, in number, height and character of buildings allowed in specified areas and the purposes to which building are specified areas may or may not be appropriated." Thus if such matters pertaining to building control could be regulated through a legislation exclusively dealing with Town Planning, no objection can be taken if the regulations pertaining to town planning are framed in pursuance of a provision inserted by legislature in the Sindh Buildings Control Ordinance, 1979 which predominantly deals with the matters pertaining to building control.
95. ' Now we proceed to dwell with the contention that the Sindh Buildings Control Ordinance, 1979 stands impliedly repealed with the promulgation of Sindh Local Government Ordinance, 2001 and consequently the Karachi Building and Town Planning Regulations, 2002 framed under a provision contained in this law, stands repealed, they have further submitted that the Regulations, 2002 have been framed by the Authority under the Sindh Buildings Control Ordinance, 1979 which stands impliedly repealed, and with the repeal of the Ordinance, the Karachi Building Control Authority ceases to be authority under the Ordinance, and therefore a non-existing authority could not frame or approve the Regulations and could not accord approval to the Building plan in accordance with the Regulations. They have argued that Sindh Local Government Ordinance, 2001 was promulgated on 6th of August, 2001. Section 3 of this Ordinance provides that the ordinance shall override the other laws and the provision of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force. The have submitted that under sections 14 and 35 of the Sindh Local Government Ordinance, 2001 the City District Government, Karachi has the power to appoint various groups of the officers in respect of their work. It is also empowered to create group of officers in respect of building and can promulgate building rules and plan standards. The City District Government Karachi is also empowered to make bye-laws in respect of the zoning, master planning and building and has been conferred the general powers in respect of building control and issues related to buildings. They have given a comparative chart of the provisions contained in Sindh Buildings Control Ordinance, 1979 and Sindh Local Government Ordinance, 2001, dealing with the same subject-matter pertaining to the Building Control. Their contention is that since 2001 an overlappaing is existing in respect of powers, to perform building control function, within the city of Karachi and according to them the non obstante clause in Sindh Local Government Ordinance, 2001 indicates the intention of legislature to repeal all other laws in respect of same subject-matter and therefore by virtue of section 3 of the Sindh Local Government Ordinance, 2001, the Sindh Buildings Control Ordinance, 1979 is no longer valid law. In support of their contention of implied repeal, they have placed reliance on the view expressed by Crawford in this treatise published in 1940 and on judgment from Madras High Court which has been referred earlier in this judgment.
96. ' However the learned Advocates for petitioners have merely pointed out the overlapping in the two Ordinances and have not pointed out the inconsistencies or contradictions in the two laws which cannot be reasonably reconciled. They have merely asserted that there are tremendous inconsistencies between the two Ordinances and therefore the Sindh Buildings Control Ordinance must be held to have been impliedly repealed. They have submitted that under both the Ordinances power to make bye-laws have been conferred. Under the former Ordinance the power is vested in the authority under the Sindh Buildings Control Ordinance, 1979 and under the Sindh Local Government Ordinance 2001 it is vested in the 'City District Government Karachi. In the same context they have submittee that under the Sindh Local Government Ordinance, 2001 the power to approve building plan is vested in the City District Government and the Karachi Building Control Authority cannot exercise such powers.
97. ' We have very carefully considered the contentions. At the very outset we would like to observe that the under the present dispensation existing under the Sindh Local Government Ordinance, 2001 the Sindh Buildings Control Authority has become a department of the City District Government Karachi and is not an independent autonomous body separate and distinct from the City District Government Karachi. The Chief Controller Building and all other officers performing functions with the Karachi Building Control Authority have become a group of officers under the City District Government, Karachi. They have no independent identity of their own, other than a department of City District Government Karachi and therefore the contention that the approval for the building plan could be given by a group of officers of the City District Government, Karachi and not b31 the officers performing functions in Karachi Building Control Authority has become totally" irrelevant and requires no consideration. We would also like to point out that under section 195 of the Sindh Local Government Ordinance, 2001 every local government which includes. City District Government Karachi, shall perform their functions conferred by or under the .Ordinance and in performance of their respective functions shall exercise such powers and follow such procedures as are enumerated in the Sixth Schedule in this schedule is a full chapter under the heading, 'Building and land use control' .
98. ' Contention has been raised that by virtue of overriding and non obstente clause, in section 3 of the Sindh Local Government Ordinance, 2001 the Sindh Buildings Control Ordinance, 1979 stands repealed on account of overlapping only in support of their contention. They have placed reliance on the judgment of Madras High Court in the case of Gunepally Thamamaya (supra). We are of the opinion that the above judgment does not support the contention because it has been held by the Madras High Court that the rule is that the Court could lean against repeal of the. Earlier Act by implication and unless it is, absolutely clear that the operation of the first Act has to be curtailed by the Act, the previous Act should be held to continue in force. On the other hand Mr. Kamal Azfar has placed reliance on the judgment of Supreme Court of Pakistan in the Case of Mumtaz All Khan Rajban (supra) wherein the law has been laid down that the general rule is that no repeal can be implied unless there is an express repeal of earlier Act by the later Act or unless it is established that the two Acts cannot stand together. The subject has been discussed by Mr. S. M. Zafar in-his book UNDERSTANING STATUTES (2002 Edition) from page 392 to 396 as 'follows:--
(ii) Implied Repeal ' Where two Acts are inconsistent or repugnant, the latter will be read as having impliedly repealed the earlier. Repeal by implication is not favored by the Courts, for it is to be presumed that Parliament would not intend to effect so important a matter as repeal of a law without expressing its intention to do so. However, if provisions are enacted which cannot be reconciled with those of an existing statute the only inference possible is that, unless it failed to address its mind to the question, parliament intended that the provisions of the existing statute should cease to have effect, and an intention so evinced is as effective as one expressed in terms. The rule is therefore, that one provision repeals another by implication if, but only if, it is so inconsistent with or repugnant to that other that the two are incapable of standing together. If it is reasonably possible to construe the provisions as give effect to both, that must be done, and their reconciliation must in particular be attempted if the late statute provides for its construction as one with the earlier, thereby indicating that Parliament regarded them as compatible, or if the repeals expressly effected by the later statute are so detailed that failure to include the earlier provisions among them must be regarded as such an indication. On the application of the principle that the "express mention of one thing excludes others".
99. ' To determine whether a later statute repeals by Implication an earlier statute, it is necessary to scrutinize the terms and consider the true meaning, and effect of the earlier Act until this is done: it is impossible to ascertain whether any inconsistency exists between the, two enactments.
100. ' Cases of Repeal by necessary Implication ' No repeal can be implied, unless there is an express repeal of an earlier Act by the later Act, or unless the two cannot stand together. Hence, statute is repealed by implication in the following cases:-- ' If its provisions are plainly repugnant to a subsequent statute.
101. ' If the two, standing together would lead to wholly absurd consequences. Where a construction which lead to a repeal but produce absurd and anomalous result was avoided.
(c) If the entire subject-matter of the first is taken by the second.
102. ' Crawford in his " Statutory Construction" says in this behalf that "of course, where a repeal is effected through implication, the later enactment thus affecting preexisting law must be subjected to close scrutiny in the light of its own provisions and those of the law apparently abrogated in the whole or in part. The construction of the new law becomes an important consideration, since its meaning and scope will determine whether a repeal takes place, and if so, its extent. And usually one of the two questions will arise (1) Whether the new enactment is intended as a substitute for the old; or (2)' whether the new law is irreconcilably inconsistent with the old so that the former is thereby terminated. In brief the problem will be simply to determine is legislative intention--- whether the old law shall cease or whether it shall be supplemented. It is the province of the Court to ascertain this intent, form the terms and provisions of the later enactment. But the Courts will not recognize an implied repeal, unless the intent to repeal clearly- appears."
103. ' The subject has been dealt with elaborately by Justice G.P. Singh, former Chief Justice MP High Court (India) in this book Principles of. Statutory Interpretation (9th Edition 2004) from pages 567 to 582.
104. ' After referring large number of rulings mainly by the Supreme Court of India it is stated as follows:- - "There is presumption against repeal by implication; and the reason of this rule is based on theory, that the legislature while enacting a law has complete knowledge of the existing laws on the same subject-matter, and therefore, when it does not provide a repealing provision, it gives out an intention not to repeal the existing legislation. When the new Act contains a repealing section, mentioning the Acts which it expressly repeals, the presumptions against the implied repeal of other laws is further strengthened on the principle, 'expressio unius est exclusio alterius'. Further, the presumption will be comparatively strong in case of the virtually contemporaneous Acts. The continuance of existing legislation in the absence of express provision of repeal, be presumed, the burden to show that there has been repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and repeal is inferred by necessary implication when the provisions of later Act are so inconsistent with or repugnant to the provision of earlier Act 'that the two cannot stand together'. But if the two may be read together and some applications may be made of the words in the earlier Act, a repeal will not be inferred.
105. ' A reference has been made to the judgment of High Court of Australia in the case of Shergold v.
106. Tanner wherein the law was laid down as under:-- ' It is basic rule of construction that in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that application, for there is a general presumption that the legislature intended that 'both provisions should operate -and that, to the extent that they would otherwise overlapping one should be read as subject to the other.
107. ' Applying the above principle and test in the context of the provisions contained in Sindh Buildings Control Ordinance, 1979 and Sindh Local Government Ordinance, 2001 we find that there is a repealing section in the Sindh Local Government Ordinance, 2001. Certain enactments have been repealed under section 196, including the Sindh Local Government Ordinance, 1979, but the Sindh Buildings Control Ordinance, 1979, has not been repealed. Thus the presumption would be that the legislature has no intention to repeal the Sindh Buildings Control Ordinance, 1979, in spite of inserting various provisions in the Sindh Local Government Ordinance, 2001 dealing with the subjects, dealt with by the Sindh Buildings Control Ordinance, 1979 as well.
108. ' As there is no specific repeal of the Sindh Buildings Control Ordinance, 1979 in section 196 of the Sindh Local Government Ordinance 2001 and the implied repeal is sought on the basis of non obstante clause contained in section 3 of the Sindh Local Government Ordinance, 2001, it is imperative to consider the effect of overlapping provision by insertion of non obstante clause. The question came for consideration before Supreme Court of India in the case of Raghunath v. State of Karnatak AIR 1992 SC 81. It was held that special enactment or rule cannot be held to be overridden by a later general enactment or simply because the latter opens up with non obstante clause. There should be a clear inconsistency between the two before giving or overriding effect to the non obstante clause. We are of the considered opinion that the principle of implied repeal in the present context shall be applicable if there is any, conflict or inconsistency which cannot be reasonably reconciled or repugnance in the provision contained in the Sindh Buildings Control Ordinance, 1979 and Sindh Local Government Ordinance 2001. We are fortified in our views with a earlier judgment .Of this Court reported as Standard Chartered Bank v. Karachi Electric Supply Corporation Ltd. PLD 2001 Karachi 344 and the judgment of Lahore High Court reported as Arif Hussain Shah v. Operative Director, Administration, Electric Equipment Manufacturing Co. Ltd. PLD 1979 Lahore 603 as well as the judgment of Honourable Supreme Court reported as E.F.U. General Insurance Co. Ltd. v. Federation of Pakistan PLD 1997 Supreme Court 700. A principle has been laid down in the above judgments that non obstante clause beginning with word "notwithstanding" may create exception where there is conflict between two provisions, or it may be clarificatory of original position and introduced only by way of abundant caution' and in case of such conflict may lead to presumption that such provision would .Prevail over other provision. The learned Advocates for the petitioners have not been able to show any inconsistency or conflict between the provision contained in the Sindh Buildings Control Ordinance, 1979 and the Sindh Local Government Ordinance, 2001 and have merely pointed out the overlapping. The overlapping which are not inconsistent shall not have the effect of implied repeal and the presumption would be that intention of legislature is that both the Statutes should co-exist until and unless there is inconsistency. If in exercise of the powers vested under the later Ordinance any bye-laws or rules are framed which are inconsistent with the Karachi Building and Town Planning Regulations, 2002 framed under section 21-A(3) of the Sindh Buildings Control Ordinance, 1979, then only the provision contained in the bye-laws, rules or Regulations under Sindh Local Government Ordinance, 2001 shall be impliedly repealed to the extent of irreconcilable inconsistency. No such Regulations, bye- laws or rules have been framed so far and therefore the Sindh Buildings Control Ordinance, 1979 and the Regulations framed thereunder shall coexist with the provisions contained in the Sindh Local Government Ordinance, 2001 and shall not be deemed to be impliedly repealed.
109. 'For the foregoing reasons, it is held that the petition is without substance which stands dismissed accordingly.