' SAIYED SAEED ASHHAD, J.---This appeal with the leave of the Court assails the judgment of Sindh High Court, Karachi dated 29-3-1995 in Constitutional Petition No,D-1092 of 1991.
2. Brief facts of the case requisite for disposal of this appeal are that appellants Nos.1 and 2 are residents of Block 2, PECHS Karachi while appellant No,3 is a non-governmental organization (NGO) basically .Involved in checking illegal and unauthorized high-rise constructions in Karachi and for improvement of environment conditions. Respondent No,1 is owner of Plot No,140-A in Block-2 PECHS Karachi which is opposite to Plot No,141-A of Block-2 owned by appellant No,1 on which he, after constructing a house, is residing. Plot No,141-A, Block-2 was changed from residential to commercial by the Controller of Buildings respondent No,2 vide order dated 5-5-1990 in exercise of the powers under the Sindh Buildings Control Ordinance, 1979 (hereinafter referred to as. The "Ordinance of 1979"). Vide order dated 24-5-1990, respondent No,2 also granted permission for construction of multistoried building on the said plot subject to the approval of conversion by the Ministry of Works, Government of Pakistan, respondent No,14. The appellants assailed the conversion of the nature of, the plot, permission to construct multistoried building and approval of building plans. According to them, they were given assurance that construction intended to be raised on Plot No,141-A would be Ground plus two stories but subsequently it transpired that construction to be raised on the plot was beyond two stores. Accordingly C.P. No,D-77 of 1991 was filed challenging the construction of 3rd, 4th, 5th and 6th floors as the same were being raised in pursuance of an illegal building plan by the KBCA respondent No,2 in violation of the Ordinance of 1979 and the Karachi Town Planning and Building Regulations, (hereinafter referred to as the "Regulations") and also without approval from the Ministry of Works, Government of Pakistan. Prior to filing above constitutional petition the appellants and other residents of the locality made representations to the concerned authorities and on .14-8-1990 respondent No,3 cancelled the approval for construction of multistoried building which was subsequently recalled and approval of the revised plan for construction of ground and six stories was granted on 30-3-1992. Respondent No,14 vide letter dated 22-8-1994 also granted permission for conversion of the user/nature of the disputed plot, which was required in accordance with the terms and conditions of the licence/lease.
3. Respondents Nos.6 to 13 were joined in the petition on their application as they claimed to have purchased apartments/flats in the multistoried building raised on Plot No-.141-A to safeguard and protect their rights in the property. It may be pointed out that some aggrieved persons earlier tiled Constitutional Petition No,D-77 of 1991 and obtained an order of status quo but according to the petitioners therein the respondents continued with the construction work and completed the superstructure of Ground, Mezzanine plus five storeys as a result of which the said petition had become infructuous and the appellants had to file the above petition. This petition was dismissed by the Sindh High Court vide impugned judgment as it did not find any illegality or irregularity in raising the multistoried buildings on Plot No,141-A and observed that the conversion of the nature of the plot, permission to construct multistoried building and approval of .The building -plan was done by the authorities enjoying powers to do so under the Ordinance, the Regulations and the provisions of law and further that respondents Nos.6 to 13 after -having purchased shops/apartments/flats in the multistoried building had acquired fundamental right to hold and enjoy the proprietary rights as guaranteed under Articles 4 and 23 of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as the "Constitution") and in protecting or safeguarding the rights of easement, privacy and peaceful enjoyment of the appellants, the fundamental rights or respondents Nos.6 to 13 in respect of their flats could not be violated or infringed. Hence this appeal.
4. We have heard the arguments of Mr. Naeemur Rehman, Advocate Supreme Court along with Mr. M.S. Khattak, Advocate on Record for the appellants, Mr. Muhammad Sharif who appeared on behalf of respondents 9, 10, 11 and 13. Raja Abdul Ghafoor appeared on behalf of respondent No,4.
Mr. Shaffaat Hussain appeared on behalf of respondent No,5. None appeared on behalf of respondents Nos.1, 2, 3, 6, 7, 8, 12 and 14 and the appeal was ordered to proceed ex parte against them.
5. Mr. Naeemur Rehman vehemently assailed the judgment of the High Court and submitted that the same was in complete disregard and violation of the provisions of the Ordinance of 1979, the Regulations, and the Karachi Development Authority Order, 1957 (hereinafter referred to as the "KDA Order") as well as the principles of law relating to construction of multistoried buildings in Karachi as laid down by this Court as well as the Sindh High Court. Elaborating his arguments he advanced the following grounds on which he attacked the impugned judgment:--
(1) that the construction of multistoried building on plot No,141-A violated the right of privacy of the appellants;
(ii) that the conversion of nature of the Plot No,141-A from residential to commercial was in violation of the provisions of law as the same could have been allowed by respondent No,14 Ministry of Works, Environment and Urban Affairs, Government of Pakistan;
(iii) that admittedly the approval of the conversion of the nature of the plot was not granted by respondent No,14 till the construction of the multistoried buildings had been started and further that the same was not in violation of Articles 40(4) and 52-A (2) and (3) of the KDA Order as according to the above provision an order for conversion of the nature of the plot can be made only after inviting objection from the residents of locality through a public notice and deciding the same after providing opportunity to the residents which procedure was not observed;
(iv) that the permission to construct multistoried buildings consisting of ground plus mezzanine and five floors and approval of the building plan was in violation and contravention of law;
(v) that the High Court completely ignored the hardship., miseries and problems which would be faced by the residents of the locality by the construction of a multistoried building comprising of ground plus mezzanine and five floors consisting of shops, apartments/flats as it would create heavy burden on the existing water and sewerage lines, electricity and gas would infringe the right of privacy of the residents, would deprive them of fresh air, sun light, and pollution free atmosphere and would also create traffic congestion as a result of increase in the number of vehicles because a large number of persons would be occupying the shops and flats;
(vi) that the High Court erred in holding that the petition required decision of factual questions which could not be decided in, constitutional jurisdiction as the same require recording of evidence; and
(vii) that the High Court fell in error in holding that the civil petition suffered from laches and was liable to be dismissed on this ground alone.
(viii) He concluded that in view of the above infirmities and irregularities the judgment of the High 'Court could not be sustained and ought to be set aside. He further submitted that the multistoreyed building had been constructed in disregard and violation of law and according to the pronouncement made by this Court in several cases a multistoreyed building constructed in violation of law could be demolished. To substantiate his contentions he relied on the judgments of this Court in case of Haji Abdul Razak v. Karachi Building Control Authority and others, PLD 1994 SC 512 and Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority and others 1999 SCM R 2883.
6. Messrs Muhammad Sharif and Shaffaat Hussain, learned Advocates Supreme Court appearing on behalf of some of the respondents controverted the arguments of Mr. Naeemur Rehman and supported the judgment of Sindh High Court. They submitted that it did not commit any illegality or irregularity in holding that after permission/approval by the competent authorities relative to conversion of the nature of the plot, permission for construction of multistoreyed building and approval of the building plan though belatedly, the building could not be said to have been constructed illegally and in flagrant violation of the law or that it violated any fundamental or vested rights of the appellants. With regard to the order of conversion of the user of Plot No,141-A from residential to commercial-cum-residential it was submitted that no illegality was committed nor any provision of the Ordinance was violated as respondent No,3 was vested with the powers to allow/permit conversion, subject, of course to the approval of respondent No,14, Ministry of Works which in this case was duly conveyed. With regard to the contention that heavy burden will be caused on the water and sewerage lines and there would be shortage of gas, electricity and water in the locality, it was submitted by them that appropriate remedy was for the concerned authorities to take measures to provide for ,laying bigger and larger pipelines for supplying water and for disposal of sewerage as well as providing more electricity and gas and not by demolishing the floors alleged to have been illegally constructed which was not the correct. Factual situation as all the concerned Authorities had approved the construction of the high rise building after observing and complying with the requisite 'provision of law relating to conversion and construction of high rise buildings. They laid 'great emphasis on the fact that respondents Nos.6 to 13 after purchasing the shops/apartments/flats in the multistoreyed buildings have become owners thereof and their rights to own and enjoy their properties are guaranteed under Articles 4 and 23 of the Constitution which envisaged that no person would be deprived of. His property save in accordance with law. To substantiate their above contentions Messrs Muhammad Sharif and Shaffaat Hussain placed reliance on the ratio decidendi in the cases of Multi Lines Associates v.
Ardeshir Cowajee and others, reported as PLD 1995 SC 423 and Ardeshir Cowasjee and 10 others v.
Karachi Building Control Authority and others 1999 SCM R 2883 .
7. We have considered the respective arguments advanced by learned counsel for the parties, have perused the record, the relevant law applicable to the facts and circumstances of the case and the case law relied upon by the learned counsel for the parties in ,support of their arguments.
8. The High Court in dismissing the constitutional petition filed by the appellants had relied on the judgment of this Court in the case of Multi Lines Associates v. Ardeshir Cowajee PLD 1995 SC 423 wherein this Court pronounced that where a builder in constructing a high rise building had committed breach of law/regulations and irregularities which were subsequently compounded by the concerned authorities on payment of composition fee then such violation/irregularities would stand regularized and the building would not be liable to be demolished. One of the grievances of the appellants is that the High Court erred in placing reliance on the above judgment and failed to take into consideration an earlier judgment of this Court in the case of Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512 wherein this Court held that breach of law/regulation and irregularities committed in the construction of high rise building even if compounded would not wipe out the said violation/irregularities and the building so constructed would be liable to be demolished.
9. Leave to appeal was granted in this case on 24-4-1996. From perusal of the leave grant order it transpires that leave was granted primarily to consider and reconcile the two conflicting judgments of this Court delivered by Benches of equal strength in almost similar facts and circumstances. The first judgment is in the case of Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512. The other case is that of Multi Lines Associates v. Ardeshir Cowajee PLD 1995 SC 423. In both the above cited cases the .Issues involved were: with regard to the conversion of the user/nature of the plot; approval/sanction by the Karachi Development Authority for conversion and change in the user of the plot; permission/approval for construction of high rise buildings, violation of the rights of privacy, air, sun light, pollution free atmosphere of the residents of the locality; and extra burden on the utilities available in the locality, such as, electricity, gas and water, sewerage on account of construction of large number of flats/apartments in place of a single residential house as well as congestion on the adjoining roads/streets due to the increase in the number of vehicles.
10. For resolving the disputes which require determination in this case it is necessary to examine in depth the observations and the pronouncements made by this Court in the cases of Abdul Razak PLD 1994 SC 512 and Multi Lines Associates PLD 1995 SC 423 and thereafter proceed to examine the case of Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority and others 1999 SCM R 2883 to apprise as to how this Court reconciled the conflicting pronouncements. For this purpose it is found necessary to reproduce the relevant passages from all the three afforested cases. The relevant observations/ pronouncements made in the case of Abdul Razak PLD 1994 SC 512 are as under:-- 'We are inclined to concur with the above conclusion of the High Court. We may observe that the discretion given to the Authority under section 19 of the Ordinance or under Regulations Nos.20 and 25 is subject to the well-settled principle of legal jurisprudence that discretion is to be exercised fairly and reasonably and not at the cost of prejudice of third parties.
' We may also point out that there is marked distinction between a criminal liability under section 19 of the Ordinance and a civil liability under the Regulations to rectify irregularity/breaches. The Authority may compound criminal liability but it cannot regularize a breach of the, Regulations which, is of the nature which has changed the complexion or character of the structure, which was originally intended to be erected or of the plot. In such cases, it can be said that the Authority has no discretion in fact and law. The plot in dispute was intended to have residential bungalow, it was not earmarked as flats site. It is a matter of common knowledge that in the various K.D.A. Schemes the plots are categorized as residential plots, flats sites, commercial plots and industrial plots.
18. It may be stated that in spite of presence of the above unambiguous Article in the Order the successive Provincial Governments overlooked the above Article and converted amenity plots into commercial or residential plots and thereby denied to the residents of Karachi inter alia parks and playground which contributed towards environmental pollution in the city. A tendency has also developed to covert the use of a residential plot into commercial or instead of construction residential units in the form of bungalows to erect flats.
19-A. The Authority though has allegedly regularized the present construction through its letter dated 12-2-1991 but has not stated any reason for doing so. It has not adverted to the question, whether the irregularities/breaches were of the nature, which could have been regularized. The High Court in the judgment under appeal has highlighted that the breaches of the Regulations were such which are prejudicial to safe and hygienic conditions of living for the citizens and detrimental to health. In this view of the matter, the above regulations is intended and designed to be exercised when irregularity is of the nature which does not change the complexion or character of the original proposed construction nor it adversely affects third parties rights/interest.
21. It may be mentioned that framing of a housing scheme does not mean simpliciter leveling of land and carving out of plots, but it also involves working out approximate requirements of water, electricity, gas, sewerage lines, streets and roads etc. If a housing scheme is framed on the assumption that it will have residential units 1 + 1. But factually the allottees of the plots are allowed to raise multistoreyed buildings having flats, the above public utility services will fall short of requirements, with the result that everyone living in the aforesaid scheme will suffer. This is what has happened in Karachi. Without any planning and without expending the provisions of the above items of public utility services, the people were allowed to erect multistoreyed buildings having shops and flats. In consequence thereof everyone living in Karachi is suffering. There is scarcity of water, some people even do not get drinking water. The above other items of the public utility services are short of demand. Roads and, streets are normally flooded with filthy and stinking water on account of choking and overflowing of sewerage lines. To reduce the miseries of most of the Karachi, 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. Alterations in a scheme can be made for the good of the people at large, but not for the benefit of an individual for favoring him at the cost of other people.
' The relevant extracts from the case of Multi Lines Associates PLD 1995 SC 423 are as under:--
44. In the instant case, there appears to be no violation of the Regulations when the builders have got their building plan regularized after composition and have paid requisite fees for additional floors and have obtained no objection certificate. Nor only this but counsel for K.B.C.A and K.D.A.
Appearing before the High Court fully supported the case of the builders and made no objection.
They took the stand that the plan was approved and composition fees had been paid.
45. It is a well-known and admitted fact that in the city of Karachi there is congestion on account of over-population and in such situation there is no other way out except construction of high-rise buildings. Such high-rise buildings are already in existence in the close vicinity of the building in dispute. It is imperative upon the Court while exercising jurisdiction in a Constitution petition to see that discretion is to be exercised in such a way that mischief and chaos is prevented particularly when construction of high-rise building is in public interest and the construction of building in dispute is not the first building in the area in the neighborhood of which there are no high-rise building already constructed. If the writ petitioners did not want constructions of high-rise buildings in Frere Town Quarters or in that matter in Clifton area on the ground that it was purely residential area, then voice should have been raised by them against construction of high-rise buildings at the earliest opportunity long time ago when the scheme was prepared allowing such facility. Public opinion could have been molded up by making it joint cause by writing articles in the print media to leave alone particular area of the city to remain forever residential area with houses and bungalows built prohibiting construction of high-rise building and flats of such type. Since it was not done at the proper stage, now it is too late in the day to raise such objection against construction of one particular building when it stands side by side with some other tall buildings. In such circumstances, the High Court, should not have granted relief of demolition of such construction which was not in violation of the Regulations particularly when counsel for K.B.C.A.
Supported the claim of the builders. For facts and reason stated above, we set aside the impugned judgment of the High Court and allow the appeal.
11 After the leave grant order in this case, the judgments in the cases of Abdul, Razak PLD 1994 SC 512 and Multi Lines Associates PLD 1995 SC 423 were minutely examined by a Bench of five Judges of this Court in the case of Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority and others 1999 SCM R 2883 and following pronouncements/observations were made:--
20. The perusal of the above quoted extracts from the above judgments indicates that in the case of Abdul Razak, this Court held that the power to regularize contained in the Ordinance and the Regulations is intended and designed to be exercised when irregularity of the nature which does not change the complexion or character of the original proposed construction nor it adversely affects third parties rights/interest. It has been further held that the paramount object of modern city planning seems to be to ensure maximum comforts for the residents of the city by providing maximum facilities and that a public functionary entrusted with the work to achieve the above objective cannot act in a manner, which may defeat the above objective. It has been further held that deviation from the planned scheme will naturally result in discomfort and inconvenience to others. It has also been held that framing of a housing scheme does not mean simpliciter, levelling of land and carving out of plots, but is also involves working out approximate requirement of water, electricity, gas, sewerage lines, streets and roads, etc. And if a housing scheme is framed on the assumption that it will have residential units 1 + 1 but factually the allottees of the plots are allowed to raise multistoreyed buildings having flats, the above public utility services will fall short of requirements with the result that everyone living in the aforesaid scheme will suffer. It has also been held that to reduce the miseries of most of the Karachites, it is imperative on the public functionaries like the Authority to ensure adherence to the Regulations. However, it has also been clarified that it may not be understood that once a scheme is framed, no alternations can be made. Alternations in a scheme can be made for the good of the people at large, but not for the benefit of an individual for favouring him at the cost of other people.
' On the contrary, in the judgment in the case of Multi Line Associates (supra) somewhat different view has been taken. It has been held that if the builders have got their building plan regularized after composition and have paid requisite fees for additional floors and have obtained no objections certificate there is no violation of the Regulations. It has been further held that in the city of Karachi there is congestion on account of over-population and in such situation there is no other way out except construction of high-rise buildings. Such high-rise buildings are already in existence in the close vicinity of the building in dispute. It has also held that it is imperative upon the Court while exercising jurisdiction in a constitutional petition to see that discretion is to be exercised in such a way that mischief and chaos is prevented particularly when construction of high-rise building is in public interest and the construction of the building in dispute is not the first building in the area in the neighborhood of which there are no high-rise buildings already constructed.
12. After examining the above observations/pronouncements in the cases of Abdul Razak PLD 1994 SC 512 Multi Line Associates PLD 1995 SC 423 this Court made the following pronouncements:--
21. The above conclusion recorded in the, case, of Multiline Associates v. Ardeshir Cowasjee and others PLD 1995 SC 423 (supra) runs contrary to what has been held in the judgment of this Court in the case of Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512 (supra) highlighted hereinabove. With due deference, we are unable to subscribe to the above view found favour in the case of Multiline Associates v. Ardcshir Cowasjee and others PLD 1994 SC 423. The legal position enunciated, inter alia, in the above-quoted extracts from the judgment in the case of Abdul Razak v. Karachi Building Control Authority and others PLD 1995 SC 512 is in consonance with the provisions of Karachi Development Authority Order, 1957, Sindh Building Control Ordinance, 1979, and the Building Regulations, 1979. The power to regularize contained in the Ordinance and the Regulations is intended and designed to be exercised when irregularity is of the nature, which does not change the complexion or character of the originally proposed construction. The Government or the Authority under the Ordinance does not enjoy unbridled or unfettered power to compound each and every breach of the Regulations. The Regulations should be applied for the benefit of the public and not for favoring an individual. Simpliciter the factum that on account of tremendous increase in the population in Karachi the situation demands raising of high rise building, will not justify the conversion of residential plots originally intended to be used for building ground-plus- one and allowing the raising or high-rise buildings thereon without providing for required water, electricity, gas, sewerage lines, streets and roads etc. ' We may observe that even when the conversation of a residential plot on the main roads into a commercial plot is warranted on account of change in the situation, the legal requirement of public notice, inter alia, as envisaged by Article 40 of the K.D.A. Order (if applicable) and para.3 of Schedule 'IV to the Regulations is to be complied with. Secondly, simpliciter conversation of a residential plot into commercial does warrant granting of permission for a high rise building having 17/18 floors, but the Government or the Authority is under obligation to keep in view the quantum of water, electricity, gas sewerage lines, streets and roads etc., available in the locality involved, and efforts should be made to allow minimum floors, so that the same may cause less inconvenience and discomfort to the inhabitants of the locality involved.
13. From a perusal of the above quotations from the judgment in the case of Ardeshir Cowasjee 1999 SCM R 2883 following inferences or deductions can be made:--
(i) that plot designated as an amenity plot and reserved for a public benefit/facility such as hospital, school, college, library, park, play ground, community center etc. The nature or user thereof can never be converted for residential or commercial use;
(ii) that a residential plot can be converted into a commercial or commercial-cum-residential in accordance with the provisions of KDA Order, Ordinance and the Regulations as there is no specific bar of such conversion in all the said laws/regulations;
(iii) that there is no impediment in the construction of high rise building on a plot after change/conversion of its user from residential to commercial or residential-cum-commercial provided that the provisions relating to the conversion of plot and commercialization contained in the laws/regulations referred to hereinabove are complied with and the concerned authorities undertake to provide new infra structure for provision , of enhanced water supply,. Electricity, gas, provide better sewerage system, roads and ensure enjoyment of peaceful life to the residents of the locality;
(iv) that construction of a high rise building not strictly in accordance with the provisions of law and suffering from irregularities can be regularized by, compounding the irregularities and payment of composite fee provided that there is no violation of the laws/regulations and further that the violations are of the nature which can be regularized.
14. In view of the above observations this Court declared the judgment in the case of Multi Lines Associates PLD 1995 SC 423 to the extent of inconsistency with the judgment in the case of Abdul Razak PLD 1994 SC 512 as not reflecting the correct legal position and over ruled the same. In this view of the matter the question of re-conciliation of the two conflicting judgments no longer requires to be considered.
15. The question requiring determination is the affect of the pronouncement made by this Court in the case of Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCM R 2883 on the case in hand and whether in view of the pronouncements whether the building in dispute would appear to have been constructed in violation of the provision of KDA Order, Ordinance of 1979, and the Regulations.
16. Before determination the fact of judgment of Ardeshir Cowasjee 1999 SCM R 2883 it will be appropriate to take into consideration the contention of Mr: Naemur Rehman that the entire process of the conversion of the plot in dispute from residential to commercial cu residential by respondent No,2 and the approval/consent to the said conversion by respondent No,14 is in contravention of the law, thus illegal and since the very conversion was illegal, no activity in the nature of construction of high rise building could be undertaken on the plot. Mr.Naeemur Rehman for his contention had placed reliance on Article 40(4)(5)&(6) and Article 52-A(2) and (3) of KDA Order great emphasis had been laid that question of conversion of the user of the plot and approval/consent thereof accorded by respondent No,14, it will be useful to reproduce the aforesaid Articles:-- Article 40(4)(5)(6):
(4) If any person desires to use any land for any purpose other than that laid down in the Zonal Plan Scheme notified under clause (3), he may apply to the authority for permission to do so and the Authority may order a public hearing and give notice to all persons it deems affected.
(5) If the Authority refused permission to any person, such may within thirty days of the Authority's refusal, move the Provincial Government for a revision of the case.
(6) The decision of the Provincial Government on any such revision shall be final.
52-A. (1) .................................................
(2) The Authority or the Housing Society may at any time prior to utilization of any plot reserved for the purpose mentioned in subsection (1), apply to the Commissioner for conversion of such plot to any other purpose.
(3) The Commissioner shall, on receipt of an application under subsection (2), invite objections from the general public through a notice published in one English and vernacular leading local daily newspaper and the objections, if any, shall be submitted to the Commissioner within 30 days from the date of the publication of the notice.
17. From perusal of the above two Articles conversion of the user/nature of the plot can be ordered by the authority only after issuance of a public notice calling upon the residents of the locality to submit their objections to the said conversion and deciding the same after providing them opportunity of hearing. It is a mandatory requirement and order passed in violation of mandatory requirement would not be in consonance with law. However, from the material on record it stands established that after the residents of the area had come to know of the construction of the high rise building on the plot in question they had objected to the same before the relevant authorities and in pursuance of their agitation/objection, permission/approval for construction of the high rise building was cancelled. Thereafter a revised plan, which included 4th, 5th and 6th floors, was submitted and was approved. As regard the contention that on the objections of the appellants and the residents, respondent No,14 did not grant permission/sanction to the conversion of the nature of the plot it is to be noted that respondent No,14 did not at any stage refuse the same. The matter remained under consideration and on 22-8-1994 respondent No,14 granted permission/sanction for conversion of the user of the disputed plot From the above acts it is to be inferred that though the provisions of Articles 40 and 52-A(2)&(3) relative to issuance of public notice were not strictly complied with but there was substantial compliance thereof as the appellants and other concerned had objected to the same and their views were considered. In the circumstances the orders of respondents 2 and '14 relating to conversion of the nature of the plot in dispute cannot be said to be contrary to law.
18. It was submitted by Mr. Naeemur Rehman that the facts in the case, in hand are identical to the case of Ardeshir Cowasjee (supra) and therefore the pronouncements made therein would be applicable on all fours to the facts of this case as a result of which the appeal warranted to be allowed, the judgment of the High Court may be set aside, the reliefs prayed by the appellants in their constitutional petition be granted, and the floors constructed in violation may be ordered to be demolished.
19. From a perusal of the judgment in the case of Ardeshir Cowasjee 1999 SCM R 2883 and the material on record of this case it cannot be said that the facts and circumstances of the case in hand are similar and identical to the case of Ardeshir Cowasjee 1999 SCM R 2883. In the cited case the plot in dispute was an amenity plot whereas in the present case the plot in dispute was a residential plot. The Ordinance and the Regulations do not bar conversion of the nature of a residential plot to commercial or commercial-cum-residential. Therefore, conversion of the plot in dispute from residential to residential-cum-commercial use did not violate any provision of law and cannot be said have been in violation of law or the pronouncements of this Court.
20. Another circumstance which distinguishes this case from the case of Ardeshir Cowasjee is that in that case the building/erection sought to be construct was initial stage when the residents of the locality had objected to the raising of multistoreyed building and the construction had been stayed. In the present case the construction up to sixth floor was completed, the flats/apartments constructed therein were sold to third parties including respondents 6 to 13 who acquired proprietary rights in the same flats/apartments. It is on record that all the necessary approvals/sanctions and no objections as required under the KDA Order, the Ordinance of 1979 and the Regulations were obtained by the Builders for construction of the existing multistoreyed building. The concerned Authority had compounded the irregularities and the Builder paid composite fee for violating the Regulations and the irregularities which were found in the various steps relating to the mode of conversion of the nature of the plot, approval of the building plans and no objections from the Ministry of Works were got duly regularized as they were of the nature which could be regularized.
21. Respondents 6 to 13 after having purchased the properties in pursuance of the advertisement appearing in the newspaper which according to Mr. Muhammad Sharif contained specific information that the building was being constructed after all the necessary approval, sanctions/no objections of all the concerned authorities had been obtained, are bona fide purchasers for value and have not only acquired vested proprietary rights but have also acquired fundamental rights guaranteed under Articles 4 and 23 of the Constitution which confer a right on every citizen Pakistan to acquire, hold and dispose of the property in any part of Pakistan. According to these articles no body can be deprived of his rights in the property without adhering to various provisions of law and no person can be deprived of his fundamental right to hold property save in accordance with law.
22. The situation which now emerges is that there is question of safeguarding and protecting the fundamental rights of the Appellants on the one hand and of respondents Nos. 6 to 13 on the other hand. The grievance of the appellants is that by construction of the high-rise building in question their right of privacy of home as guaranteed under Article 14 of the Constitution has been violated.
In deciding this issue the fundamental rights of both the parties will have to be given due consideration and a balance will have to be struck in deciding the issue so that the fundamental rights of the warring parties are not violated. In such a situation the inconvenience, hardships and miseries to be caused to the respective parties will have to be weighed. In case this appeal is allowed the decision in the constitutional petition filed by the appellants would be in their favour resulting in granting the reliefs prayed for by them in their constitutional petition. Amongst other reliefs the appellants had sought demolition of the fourth, fifth and sixth floors which are alleged to have been constructed illegally without existence, of valid plan and permission from the concerned authorities. Relative to the contention that construction of fourth to sixth floor had been carried out illegally without approval from the Karachi Building Control Authority or permission from respondent No,14, it is noted, as already observed above, that originally approval was given for construction of ground plus two floors but subsequently the building plan was revise/modified and it was to consist of ground plus six floors. This plan was duly approved and construction had been made in pursuance thereof. Demolition of the floors said to have been constructed illegally in violation of the original building plan would result in eviction of the' owner of the flats/apartments constructed on such portion of the building and will amount to rendering them shelter less. It was submitted by Mr. Muhammad Sahrif that the respondents have spent their life time saving on purchasing the flats/apartments in the building in question and have been residing therein for the last about 12 years, therefore, in such circumstances demolition of the alleged illegal and unauthorized floors of the building would not only result in violation of fundamental rights of the respondents 6 to 13 but would result in their eviction from their properties rendering them shelter- less without a place to, live and virtually throwing them in the open. Such act would cause untold miseries, hardships and difficulties to them which would be much more severed, hazardous and harsh than the sufferance and hardship which would be allegedly faced by the appellants relative to infringement of their rights of privacy, light, fresh air and clean atmosphere if this appeal is dismissed and respondents Nos. 6 to 13 are allowed to retain and enjoy the properties.
23. The ground of hardship has always been given due consideration and importance by the Courts of law while granting a relief and they have even refused to grant a relief prayed for if the same would cause unnecessary hardship to either of the parties or to a third party. In this context reference may be made to the case of Patel v. Ali (1984) 1000 LQR 337 where the Court refused to order specific performance of the contract on the ground of hardship though all the requisite conditions for allowing specific performance were made out. The facts of case are that the vendor and her husband were co-owners of the house which they contracted to sell in 1979. The husband's bankruptcy caused a long delay in completion, for which neither the vendor nor the purchaser was to blame. After the contract the vendor got bone cancer and had a leg amputated. She later gave birth toy her second and third children. The purchaser obtained an order for specific performance, against which the vendor appealed on the ground of hardship. She spoke little English, and relied on help from nearby friends and relatives, hence it would be a hardship to leave the house and move away.
' Golding J held "that although a person of full capacity took the risk of hardship, the Court in a proper case could refuse specific performance on the ground of hardship subsequent to the contract, even if not caused by the plaintiff and not related to the subject-matter. On the facts, there would be hardship amounting to injustice, therefore, the appropriate remedy was damages".
24. As regards the right of privacy it is pertinent to note that this Court in the case of Haji Fazal-i- Raziq v. Syed Zaman Shah and others PLD 1980 SC 193 held that likelihood of any person having opportunity of overlooking the property of the other from the window of the upper storey of his property would not be a sufficient ground to hold that there was interference in the enjoyment of the property or it would amount to interference in his privacy or easementary rights.
25. As regards the deprivation of the rights to light, fresh air and clean environment, it is noted that infringement of such rights can be established only by producing satisfactory evidence and not merely on the statements in the pleadings of the affected party. There is no material on record to prove the allegation of the appellants relating to deprivation or .Violation of the above easementary rights by construction of the alleged illegal floors. It is their unfounded apprehension based on subjective and abstract consideration. The hardships inconvenience, or discomfort likely to result by the building in question 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". The appellants have failed to prove infringement of their rights of privacy, light, fresh air and pollution free environment as there is no material to substantiate their infringement.
26. So far as the question of adverse affect due to extra burden on the utilities is concerned it is suffice to say that the respondent No,3/concerned Authorities are duty bound to provide adequate relief by providing necessary infrastructure for increasing water supply, electricity, gas and laying down sewerage lines of bigger dimensions to meet the demand of extra burden and they can be activated to perform their duties. This appears to be appropriate and viable solution rather than if demolition of alleged unauthorized/illegal floor which have been regularized in accordance with law.
27. The next issue which requires consideration is whether constitutional petition filed by the appellants was hit by laches and was liable to be dismissed on this ground. The High Court in its judgment observed that there was a delay of 16 months in filing the constitutional petition. Mr. Naeemur Rehman strenuously contended that a constitutional petition involving violation and infringement of fundamental rights of the citizens could not be thrown out on the ground of delay in filing the same and heavily relied on the observations of this Court in the case of Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCM R 2883. From a perusal of the judgment in the cited case it is observed that this Court while dilating on the question of laches held that laches per se is not a bar to the constitutional jurisdiction and a question of delay in filing would have to be examined with reference to the facts of each case. It was finally concluded that laches of several years could be overlooked if the facts of the case and dictates of justice so warranted or laches of few months may be fatal. It is a settled proposition "that the delay defeats equities or equity aids the vigilant and not the indolent". Relying on the above maxim this Court as well as the High Courts of the Country have refused to come to the aid of a. Party who had not been diligent, vigilant and acted in a prudent manner. It will be appropriate to reproduce the words of Lord Camden L.C. While dealing with the issue of delay and laches from the judgment of Smith v. Clay (1767) 3 Bro. C.C.639n. At 640n observed as under:-- ' A Court of equity has always refused its aid to stale demands, where a party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this Court into activity, but conscience, good faith, and reasonable diligence; where these are wanting the Court is passive, and does nothing.
28. It will also be useful to reproduce a passage from the book titled Snell's Equity by John Meghee 13th Edition which appear at page 35 as under:--- ' Now the doctrine of laches in Courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these lapse of time and delay are most material.
29. From a perusal of the passage/quotations reproduced hereinabove the question of delay/laches in filing the constitutional petition has to be given serious consideration and unless a satisfactory and plausible explanation is forthcoming for the delay in filing a constitutional petition, the same cannot be overlooked or ignored subject, of course, having regard to the facts and circumstances of each case. It will also be useful to reproduce another passage from the same book appearing on page 35 as under:-- ' Laches essentially consists of a substantial lapse of time coupled with the existence of circumstances which make it inequitable to enforce the claim. Delay will accordingly be fatal to a claim for equitable relief if it is evidence of an agreement by the claimant of abandon or release his right, or if it has resulted in the destruction or loss of evidence by which the claim might have been rebutted, or if the claim is to be business (for the claimant should not be allowed to wait and see if it prospers), or if the claimant has so acted as to induce the defendant to alter his position on the reasonable faith that the claim has been released or abandoned. But apart from such circumstances delay will be immaterial. There can be no abandonment of a right without full knowledge, legal capacity and free will, so that ignorance or disability or undue influence will be a satisfactory explanation of delay.
30. The appellants being fully aware of raising of construction of the three floors in dispute by the Builders did not immediately approach the High Court by way of constitutional petition and allowed a period of 16 months to lapse before approaching the High Court during which period the construction was continuously in progress and was completed in accordance with the revised plan. The inaction of the appellants for a period of 16 months would certainly lead to a presumption that they had not only agreed to the construction of the three floors in dispute but had induced the builder and all other persons concerned that they had no objection to the construction thereof. In the case of Ardeshir Cowasiee 1999 SCM R 2883 the facts and circumstances did not lead to a presumption either that the aggrieved persons had surrendered their rights which according to them were violated by the construction of the high rise buildings or given an inducement or understanding to the builders and all other concerned persons that they had accepted the raising of the high rise buildings, as a result of which this Court found that the petition was not hit by laches. However, as enunciated above the facts in the case in hand are totally different and the delay of 16 months could not be overlooked or ignored in the absence of satisfactory and plausible explanation.
31. It was lastly submitted by Mr. Muhammad Sharif that the Courts of law are meant to safeguard and protect the right of the people from infringement or violation either by the public functionaries or by other citizens and they themselves could not act in a manner which would amount not only to violation and infringement of fundamental rights but also result in hardships, injustice and inconvenience. He further submitted that demolition of fourth to sixth floors if allowed, would virtually bring respondent Nos. 6 to. 13 and that this Court being the highest Court of the country would refrain from passing an order which would not only result in depriving respondents 6 to 13 of their fundamental rights to hold and enjoy their properties but will also make their lives miserable, will deprive them of the right to enjoy their dignity and they would be forced to live without a roof.
32. This Court in a large number of cases had pronounced that no party should be made to suffer on account of the act of the public functionaries or of a Court. In the case of Shireen v. Fazal Muhammad 1995 SCM R 584 this Court while dilating upon the above proposition made the following observations:- "All public authorities including the judicial functionaries while doing an act enjoined by law or merely empowered to do it must not do it improperly. An action may lie against a public authority for misfeasance or non-finance but for the sake of safe administration of justice and good sense no action lies for the breach of duty when the duty to perform is judicial or quasi-judicial. There may be a variety of reasons for omission or failure in performing such duty or exercising power with reasonable dispatch such as delaying tactics of the parties to the action, multiplicity of pending cases in the Court or intricacies of questions of law and facts raised before it.
' One of the first and highest duties of all Courts is to take care that the act of the Court does not cause injury to any of the suitors and when the expression "the act of the Court", is used, it does not mean merely the act of the Primary Court, or of any intermediate court of appeal, but the act of the Court as a whole form the lowest Court which entertain jurisdiction over the matter up to the highest court which finally disposes of the case."
33. Similar observations were made by this court in the case of Fateh Khan v. Boze Mir PLD 1991 SC 782.
34. To sum up it may be observed that the pronouncement made by this Court in the case of Ardeshir Cowasjee 1999 SCM R 2883 would not be applicable to the facts and circumstances of this case and relying upon the same an order for demolition of the alleged unauthorized OR illegal construction cannot be ordered. As a matter of fact the pronouncement made by this Court support the case of respondents Nos. 6 to 13. Such observations which can be said to be support or beneficial to respondents 1 and 6 to 13 and on which the appellant may not be able to succeed are contained in paragraph 15 of the judgment. According to the contents of this paragraph the principle propounded by this Court can be summarized as under:-- "that a residential plot can be converted into a commercial plot and permission for construction of high rise building can be given provided that all the requirements of law relating to the conversion of the nature of the plot, approval of building plan for raising a high rise building in accordance with law are complied with; and secondly that the concerned authorities undertake to provide proper and better facilities for consumption of water, electricity, gas, sewerage connection and other allied facilities. It is matter of record that approval, sanction and permission by the concerned authorities under the Ordinance and the regulations were made and building in question has been constructed, third parties interest have been created in favour of respondents 6 to 13 who have acquired proprietary rights are residing therein along with their families for the last 12 years. These facts were not in existence in the case of Ardeshir Cowasjee 1999 SCM R 2883 and, therefore, the pronouncements made therein would have no application to this case but will be applicable only to the facts and circumstances the cited."
35. For the foregoing facts, reasons and discussion, the High Court did not commit any illegality or irregularity in dismissing the constitutional petition. Accordingly, this appeal is found to be without merit and is dismissed. No order as to costs.
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