S. AHMED SARWANA, J - Ardeshir Cowasjee and others (hereinafter referred-to as "Petitioners") have filed this petition under Article 199 of the Constitution, amongst others, against Karachi Building Control Authority (hereinafter referred to as "KBCA"), Pakistan Employees Cooperative Housing Society (PECHS), Karachi Water and Sewerage Board (KW&SB), Muhammad Shabbir Kassim Machiyara (Machiyara), Engineer Bashir Ahmed (Engineer) and Architect Ahmed Shuja-ud-Din (Architect), under Article 199 of the Constitution of Islamic Republic of Pakistan, wherein the petitioners have alleged that Machiyara Brothers who are prominent members of the Association of Builders and Developers (ABAD) have constructed. Several hazardous overbuilt illegal buildings in the city of Karachi, especially in PECHS area, several of which were sealed by KBCA in 1996 and have annexed a copy of the Public Notice published by KBCA in the daily "Dawn" of Friday, January 10, 1997'giving a list of such buildings. It is alleged that the officers of KBCA in collusion with the builders have been continuously approving and facilitating illegal conversion and commercialization of residential plots and illegal and over construction of buildings thereon. The petitioners have especially referred to Plot No,l4-l-A/6, PECHS and illegal construction thereon (hereinafter called the "Plot") which is alleged to be an unlawful amalgamation of two residential plots and illegally converted from a residential plot into a commercial one and have alleged that Building Plan was approved and the construction thereon was carried out in gross violation of the Building Laws and Regulations. The petitioners have also alleged violations of the fundamental rights of the citizens in general and the inhabitants of the area in particular to a meaningful life as enshrined in Articles 8 , 9, 14, 23 , 24 and 25 of the Constitution. It is also alleged that the petitioners complained on numerous occasions to the Government of Sindh and other relevant statutory authorities but in vain. After narrating the innumerable violations of law and building rules and regulations, the petitioners have sought the following relief:- "(a) declared that the amalgamation of the two original residential plots (to form the present plot) has been carried out in violation of the law, and is null and void ab initio,
(b) declare that the commercialization of the residential plot has been carried out in violation of the law, and is null and void ab initio,
(c) declare that the approved plans for the building on the plot, approved in violation of the law are null and void ab initio,
(d) declare that construction on the plot effected in violation of the law and in contravention of the approved (albeit illegal) plan is illegal and liable to be demolished,
(e) direct the respondents Nos.l to 3 to demolish the building so raised with the assistance of respondent No,5, as the aforesaid construction has been effected in violation of the law,
(f) restrain the builders, respondents Nos. 10 and 11, from raising any further construction on the plot or parting with physical possession of the construction already raised or created any third party interest therein,
(g) restrain the KBCA, respondent No,l, from issuing any "NOC for Sale" or "Completion/Occupancy Certificate" in respect of the building raised in violation of the Regulations 1979 and 20Q2 and of the approved plan,
(h) restrain the Government of Sindh, respondent No,3, and their District Registrar from registering any conveyance in respect of any part of the property,
(i) restrain the utility companies, respondents Nos.6 to 9, from issuing any electric, gas, telephone or water supply connections in respect of the building on the plot, without a proper Completion/ Occupancy Certificate from the respondent No, 1,
(j) direct the PECHS, respondent No,4, to forfeit/cancel the lease of the plot for violation of the Building Regulations and lease conditions,
(k) direct the respondents Nos.l to 4 to institute multiple criminal prosecution proceedings against, the builders, respondents Nos. 10 and 11, the colluding Government officials, including respondents Nos. 12 to 15, and the licensed professionals,, respondents Nos. 16 and 17, for fraud and causing public danger, and for , contravening all the applicable laws including the Regulations 1979 and 2002 and the Ordinance, 1979."
2. On 1-4-2003, the Court issued Notice to all parties with the direction that no third party interest in the plot shall be created. The Nazir was appointed Commissioner to inspect the plot with the assistance of an expert and report whether the construction being raised on the plot was in violation of the approved building plan. After inspection, the Nazir submitted his report along with tlie opinion dated 9-4-2003 of Imran Ahmed Farooqui, Architect, whose services he had acquired pursuant to the permission given to him by the Court on 1-4-2003. Mr. Farooqui in his opinion dated 9-4-2003 stated that the building was constructed violating the approved submission plan to get the violations regularized later and that even, the regularizations plan was not an "as built drawing of the building" and pointed out several glaring violations in the construction e.g. Addition in mezzanine floor, seven spiral stairs shown in the plan were missing, covered area was larger than shown in the plan etc. Noor Muhammad Usman, carrying on business as Seemco Estate (Respondent No, 10) apparently the builder, who is contesting the petition, filed his counter-affidavit denying the allegations and asserted that the building had been constructed in accordance with the Approved Building Plan and also filed Objections to the Nazir's report. He also stated that he had applied for regularization plan on 3-12-2002.
3. Muhammad Faheem, Deputy Controller of Buildings KBCA filed a Counter-Affidavit on 29-5-2003 giving the history of the case. He did not make any comment about the alleged illegal amalgamation of the two residential plots in support of which the petitioners have produced internal noting 6f various departments of KBCA and submitted that the proposed Building Plan was approved for 2 Basements + Ground + Loft + 8 Floors residential flats only by approval letter dated 23-2-1999 as first stage approval valid for plinth level only (Reference Annexure CA-10 to the counter-affidavit of Respondent No, 10) and later' on second and third stage of approvals were granted on 16-12-2000 and 4-4-2002 respectively. He also added that the Regularization Plan for the said plot was approved by KBCA on 8-4-2003.
4. The Approved Regularization Plan dated 8-4-2003 approved by KBCA, a copy of which has been annexed as Annexure CA-11 to the counter-affidavit of respondent No, 10 includes, among others, the following conditions:- ' "The building plan for the above- mentioned plot attached hereby approved and you are permitted" to carry out construction on the said plot accordingly.
' Provided that it holds good only if the work is started within one year from the date whereafter it shall be deemed to have lapsed.
' Subject to the conditions tha.t if any violation is found during construction, shall be demolished.
' At any later stage, if it is found that the approval of regularization plan was obtained with the misrepresentation of facts, the same will be withdrawn/ cancelled.
' At present, building is not complete in all respect. You are hereby directed to complete the structure in accordance with the approved regularization plan." (sic)
5. On 7-8-2003, KBCA submitted a report on the construction signed by Muhammad Fahim, Deputy Controller of Buildings which reads as follows:- "Approval:2 Basements + Ground + Mazzenine + 8 upper floors were approved for construction on 23-2-1999, 6-2-2000 and 4-2-2002in three stages.
ViolationsViolations have been regularized, and at present no violation exists at site.
PresentThe owner/attorney of the plot in positionhas submitted applica--tion regarding regularization/ completion plan on 24-5-2003.
(Photocopy of the application for completion plan is attached herewith).
' The copy of the attached letter includes an assurance from the builder in the following words:- ' "The completion plans are exactly as same as regularized approved plans."
6. On or about 27-8-2003 the petitioners filed their reply to the aforesaid KBCA report in the following terms:- "(1) The chronology of the illegal construction of "Serena Pride" is as follows:- Date Event Stage of construction 23-2-1999 1st stage approval Excavation (empty plot) KBCA commences at site, which consists of empty plot Circa mid Infamous "Fortune Towers"
Dec. 1999 Project is stopped by SHC, and illegal construction at all other buildings on Sharah-e- Faisal grinds to a halt.
6-12-2000 2nd Stage approval. Structure of (at plinth level) by two basement KBCA floors constructed in fifteen Months (Since 1st stage approval by KBCA)
3-12-2001 "Compounding"
Ordinance promulgated by Governor Soomro 4-2-2002 3rd Stage approval Structure of (at ground floor ground roof level by constructed in KBCA. Further fourteen months (since . 2nd stage approval by KBCA)
19-3-2002 "Regularization" Structure of, at Ordinance most, one promulgated by (first) floor Governor Soomro constructed during further 1-1/2 month (since 3rd stage approval by KBCA) original appro1 23-2-1999 and tl plan dated 8-4-21 4-5-2002 Shehri: CBE complains to KJ3C and other authorities about Machiyara's two projects, giving details of previous ten other illegal > buildings. < 7-5-2002 The STAR prints Structure of an expose on 31/2 floors Shabbir constructed Machiyara's two during three unauthorized months (since projects, with 3rd stage photos of buildings approval by KBCA)
DateEvent Stage of construction 23-2- 199923-2-2000 1st stage approval 23-2-2001 Excavation (empty plot) KBCAcommences at site, which consists of empty plot Circa midInfamous "Fortune Towers"
Dec.
1999Project is stopped by SHC, and Illegal construction at all other buildings onSharah-e-Faisal grinds to a halt.
6-12- 20002nd Stage approval Structure of (at plinth level) by twobasement KBCAfloors constructed in fifteen Months (Since 1st stage approval by KBCA)
3-12- 2001"Compounding" Ordinance promulgated by Governor Soomro 4-2- 20023rd Stage approval Structure of (at ground floor ground roof level by constructed in KBCA.further fourteen months (since 2 stage approval by KBCA)
19-3- 2002"Regularization" Structure of, at Ordinance most, one promulgated by (first) floor Governor Soomroconstructed during further 1-1/2 month (since 3stage approval by KBCA)
4-5- 2002Shehri: CBE complains to KBC acid other authorities aboutMachiyara's two projects, giving details of previous ten other illegal buildings.
7-5- 2002The STAR prints an expose onShabbir Machiyara's two unauthorized projects, photos of buildingsStructure of 31/2 floors constructed during three months (since with 3 stage approval by KBCA)nd rd rd ' From this chronology it can be seen that the illegal building was at the level of the roof of the ground, floor (3rd stage approval) only six - weeks before the promulgation of the "regularization"
Ordinance. During these 6 weeks, the builder could have put up, at most, the columns and roof slab of another one floor.
(2) Thus at the time of promulgation of the "regularization" Ordinance, the illegal "Serena Pride" existed only at the 1st floor level. Consequently,; only this much of the illegality is eligible for regularization". Floors-Nos. 2 to 8 cannot be "regularized".
(3) The STAR news items dated 7-5-2002 (Annex 7 of the petition) (less than two months after promulgation of the "regularization" Ordinance) clearly shows the "Serena Prime" structure at the G + 3 1/2 floor level.
(4) The layouts of the structural 'elements at the plinth level and at the ground floor level in the original approved plan dated 23-2-1999 and "regularization" plan dated 8-4-2003 are completely different. Consequently, the KBCA should not have approved the 2nd stage and 3rd stage plans because the builders had already violated the 1st stage plans. The KBCA has defeated the very purpose of having stage-wise approvals, which was to ensure that no illegal construction is carried out."
' On 23-9-2003,, when we heard the arguments of the learned counsel, we inquired from Mr. Abid Zuberi, learned counsel for respondent No, 10, whether he would like to file any statement in reply to the comments of the petitioners. He stated that he did not want to file any statement and that his counter-affidavit be taken as a reply to the petitioners 'Comments' dated 27-8-2003.
7. On perusal of the file in general and the documents referred to above in particular, many inconsistencies and conflicting versions given by all the contesting parties have emerged. The first approval dated 23-2-1999 (Annexure CA-10 of the counter-affidavit) states in Condition 24 that the approval is valid up to plinth level while Condition No,25 states "as per undertaking submitted by owner dated 17-11-1998". The undertaking has neither been mentioned or elaborated anywhere nor a copy thereof has been provided by KBCA or the contesting parties. The petitioners have given a Time Chart of the construction of the building according to which at the most, the structure upto the first floor could be constructed upto 19-3-2002 when the Regularization Ordinance was promulgated by the Governor of Sindh. This fact is disputed by respondent No,
10. However, the Regularization Plan dated 8-4-2003' clearly states;--- ' "At present, building is ' not complete in all respects. You are hereby directed to complete the structure in accordance with the approved regularization plan", (sic)
' This statement indicates that the building was not complete in all respects upto 8-4-2003. On the other hand, KBCA in its report dated 7-8-2003 reproduced above has stated ' "The owner/attorney of the plot in question has submitted application regarding regularization/ completion plan on 24-5-2003."
' This statement also, prima facie, indicates that the building was not complete in all respects upto 24-5-2003 and the plan for its regularization was submitted on 24-5-2003.
8. KBCA has also not explained or clarified how, why and under what circumstances the construction plan was approved in three stages in the years 1999, 2000 and 2002. The reason given in paragraph 4 of the petitioners' comments dated 27-8-2003 appear to be correct. Further, the report dated 9-4-2003 of the independent surveyor Mr. Imran Ahmed Farooqui, Architect that the Regularization Plan was not "and as built drawing of the buildings" indicates that the allegations of the petitioners are correct and that the building was incomplete and several serious construction violations were in existence on 19-3-2003 when the regularization of unauthorized construction Ordinance, 2002 was promulgated.
9. In C.P. No,D-856 of 2002 Ardeshir Cowasjee and others v. Government of Sindh and others, a learned Division Bench of this Court in its order dated 14-10-2003 has held that the word "constructed" use in section 5 of Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, applies only to buildings completed in all respects on the date of commencement of the Ordinance, which was 19-3-2002. In view of the contradictory statements made by 'the parties including KBCA and the documents available on the record including the report of the independent surveyor, it is not possible to decide whether the construction on the plot in dispute was complete in all respects on 19-3-2002. If the construction had. Been complete prior to this date, respondent No, 10 would be entitled to the benefit available under the above, referred Regularization Ordinance of 2002; however, if the Regularization Application under the said Ordinance was filed before the completion of the building in all respects .The benefit of the provisions of the aforesaid Ordinance would not be available to the builder and the alleged Regularization/Occupation Certificate issued by KBCA would be illegal and void. It is a well-settled principle of law that the High Court in the exercise of its extraordinary jurisdiction under Article 199 of the Constitution does not record evidence and decide disputed questions of fact which can only be done by filing a suit in competent Court of general civil jurisdiction. The relief sought by the petitioners therefore cannot be granted in this petition even though it is a matter involving general public importance relating to the quality of life of millions of citizens of the city of Karachi.
10. In the circumstances, this petition is disposed of in the following terms:-
(i) The petition is disposed of as not maintainable under Article 199 of the Constitution.
(ii) The petitioners are allowed a period of 30 days to file a suit for obtaining the necessary relief from an appropriate Civil Court having jurisdiction in the matter including interim relief of a temporary injunction.
(iii) Until the expiry of 30 days:-
(a) The order dated 9-9-2003 suspending the operation of this Court's order dated 27-8-2003 shall continue;
(b) The KBCA orders issuing the completion and occupation certificates shall stand suspended;
(c) The respondent shall not occupy or allow creation of any third party interest in the building in question.