1. FAISAL ARAB, J.---The petitioners Nos. 1 to 4 are residents of petitioner No,5 Society i,e, Gulshan-e- Faisal Cooperative Housing Society Limited,. Bath Island. Adjacent to the petitioner No,5's land there is a piece of land comprising of 2600 square yards belonging to Karachi Port Trust, the respondent No,5 in the present petition. The dispute in the present petition iswith regard to the legality of the construction of a residential complex being built on the said piece of land by Karachi Port Trust.
2. Initially in 2004 when KPT decided to construct its residential complex for its officers on the plot in question, it sought permission from KBCA vide its application dated 24-11-2004. However, without obtaining approval of building plans from KBCA, KPT in January, 2006 commenced construction of its complex on the assumption that no such approval is required from KBCA as according to KPT, Schedule 1-A Chapter 1 of the Karachi Building. Town Planning Regulations, 2002 notifies KPT as one of the authorities which can sanction and approve building plans of the buildings that are to be constructed on land belonging to it.
3. When KBCA noticed construction works being carried out on the plot in question, it issued show- cause notice to KPT on 31-1-2006. This notice was not responded. The petitioner No,5 Society which also felt aggrieved by the construction of the multi-storeyed building coining up right next to its residential area Wrote letter dated 31-3-2006 to KBCA seeking action against KPT's unauthorized construction. KBCA followed up its show-cause notice dated 31-1-2006 with several other notices.
4. Show-cause notices were issued by KBCA to KPT on 17-2-2006, 10-4-2006, 29-4-2006, 16-12-2006 and 6-2-2007. KPT on its part responded to KBCA's notices vide letter dated 8-6-2006. In the said reply KPT took the stand that KPT being itself an authority to approve building plans by virtue of Schedule 'A-1to Chapter 1 of the Karachi Building Town Planning Regulations 2002, it is not required to get its plans approved from KBCA for buildings that are to be constructed on land belonging to KPT.KPT therefore continued with its construction work.
5. On 30-11-2006 petitioner No,5 Society served legal notice on KPT which was not responded by KPT.
6. Being dissatisfied with the KPT's construction works on the plot in question, the petitioners filed the present petition on 3-2-2007 seeking following reliefs in its prayer clause:--
(I) Direct the respondent No,1 to demolish the construction raised on Respondent No,4's plot measuring about 2600 square yards situated at Street No,14, off Allama Shibli Road, GFCHS Ltd. Bath Island, Clifton Karachi that has been raised in violation of lease conditions (annexure '13') of Gulshan-e-Faisal, Cooperative Housing Society Limited (Petitioner No,5), the Ordinance and the Regulations;
(II) direct the respondent No,2 and/or respondent No,3 to issue requisite notice and take steps for forfeiture of any and all rights of the respondent No,4 to or in the subject plot in view of the violation of the lease conditions;
(III) restrain the raising of construction on the subject Plot save that of dwelling house and in excess of ground plus two storeys and contrary to the lease conditions, the Ordinance and the Regulations;
(IV) attach the subject plot and or restrain the raising of any further-construction thereon until the decision of this petition.
7. Mr. Rafiq Ahmed Kalwar, counsel for the petitioner argued that in the entire locality of the petitioner No,5 Society, construction is permissible only for ground plus two storeys and therefore construction of a ,multi-storeyed building inn residential area is illegal and liable to be demolished.
8. He submitted that the civic amenities which are provided to petitioner No,5 Society meet the requirements of residential bungalows only and not high rise buildings and therefore the multi- storeyed building being built by KPT would not only disturb the whole water, and-sewerage system but it would also become a continuous source of nuisance on account of increase in traffic in the locality. He also argued that KPT did not obtain approval of sitsbuilding plans from KBCA and therefore the entire construction is being illegally raised. He submitted that section 6 of the Singh Buildings Control Ordinance, 1979, provides that no building could be built without first obtaining approval of its building plans from the authority and KPT in the first instance did submit an application for seeking KBCA's permission but subsequently did not pursue the matter with KBCA and is continuing with its unauthorized construction. The counsel for the petitioners also contended that the disputed plot falls within Bath Islandarea and therefore approval of building plans ought to have been obtained from KBCA.
9. Mr. Muhammad Sarwar Khan, Addl. A.-G.,, while adopting the argument of Mr. Rafiq Ahmed Kalwar submitted that in absence of any notification of the Provincial Government under section 1(3) of Sindh Buildings Control Ordinance, 1979 excluding the operation of the said Ordinance to KPT area, construction of buildings in the KPT area is. Also subject to the regulations and KPT is required to submit its buildings plans to KBCA for approval as envisaged by section 6 of the Sindh Buildings Control Ordinance, 1979.
10. Mr. Delawar Hussain, learned counsel for KBCA argued that under Regulation 1-1.3 Karachi Building and Town Planning Regulations, 2002 are applicable to whole of Karachi except Cantonment areas and therefore any building constructed in an area which does. Not fall in a Cantonment area, approval of its building plans has to be Sought from KBCA, otherwise the building is to be regarded as illegal and liable to be demolished.
11. In response to above referred arguments of learned counsel for the petitioner as well as respondents Nos.2 and 3, Mr. Mushtaq A. Memon, learned counsel for Karachi Port Trust argued that no doubt that under section 6 of the Sindh Buildings Control Ordinance, 1979, before commencing construction of a building, the building plans have to be first approved by the Authority but he explained that the word `Authorityis not confined only to Karachi Building Control Authority as it also includes such other authorities which are mentioned in Schedule 1-A to Chapter 1 of Karachi Building Town Planning Regulations, 2002. He submitted that under. Regulation No,1-4.1 of the said Regulations, the authorities mentioned in the Schedule 1-A have been delegated the powers and duties to act as a 'Concerned Authorityfor areas under their respective jurisdiction and the plot in question being part of KPT land, and KPT being also. Listed as one of the "Concerned Authorities" in Regulation No,1-4.1, it is for the KPT to scrutinize and approve its building plans keeping in view the restrictions and limitations contained in the Regulations, 2002. He therefore submitted that no approval from KBCA was required. He further argued that the KPT's building plans conform to the Regulation governing Zone 'Aas KPT area is part of Zone 'A'. Mr. Mushtaq A. Memon elaborated his arguments with regards to propriety of the construction work by explaining that under Regulation 25-9.6.6 certain exceptions as to compulsory open space and foot-print have been provided to various area including KPT and therefore KPT in its building plans has taken advantage of such exceptions while applying Regulations Nos. 25-2.1 and 25-4 to its construction plans. Mr. Mushtaq A.
12. Memon then submitted that while applying plot ratio of 1:1.5. Which is permissible under the Regulations, 2002, KPT is entitled to raise construction up to 16 storeys and therefore its building plans conform to the regulations and no illegality has been committed by KPT even under the Regulations, Mr. Mushtaq A. Memon also argued that the terms and conditions on which the residents in the petitioner No,5 Society were allowed to construct their houses cannot be imposed upon Karachi Port Trust as such restrictions were imposed by the lessor of the land which granted land to the Society whereas there exists no such restrictions when the land was granted to KPT.
13. In order to examine the legality of the construction of the building in question, we feel necessary to examine various regulations of Karachi Building and Town Planning Regulations, 2002. Regulation No,1-1.3. Provides that these regulations shall apply to whole City District of Karachi except Cantonment areas or the project of National security so declared by Federal Government.
14. Regulation No,1-2 provides that every person who intends to carry out building and development works has to comply with the requirements of Regulations. As the plot in question is not located in Cantonment area, there is no doubt that construction on the plot in question is to be regulated by the Karachi Building and Town Planning Regulations 2002. Even Mr. Mushtaq A. Memon in his arguments has submitted that its construction plans are in accord with the said Regulations. Thus the legality of the building in question is to be examined in the light of the provisions of the Regulations, 2002.
15. Under Regulation 25-9 various areas of the city of Karachi have been divided into zones. For each zone there are separate provisions in the Regulations with regard to floor area ratio, foot-print etc. That is required to be maintained. Therefore, when approval of building plans is sought in a particular zone, the building plans have to conform to the Regulations which are applicable to that particular zone. Under Regulation 25-9.1, Karachi Port Trust area falls in Zone 'Aand under Regulation 25-9.2; Bath Island area falls in Zone '13'. The Regulations prescribe different floor area ratio for each of the two zones as is evident from Regulation No,25-9.1.2 which relates to Zone 'Aand Regulation No,25-9.2.2 which relates to Zone 'B'. Zone 'Aand Zone 'Bborder each other and are divided by a railway line passing through them. The plot in question which was originally part of the area granted to Karachi Port Trust, on account of delimitation of areas falls in Bath Island area.
16. Therefore the construction of plot in question is to be regulated by the Regulations which are applicable to areas of Zone 'W. Even otherwise, under Regulation 1-4.1(i) Karachi Building Control Authority, (ii) the Master Plan and Environmental Control Department and (iii) concerned Authorities listed in Schedule 1-A to Chapter 1 of the Regulations have been delegated the powers and duties assigned by these Regulations. At serial No,3 of Schedule 1-A to Chapter 1 of the Regulations. Karachi Port Trust has been listed as one such authority. The serial No,3 to the schedule 1-A is reproduced as follows:-- No, Authority Jurisdiction Powers Karachi Port TrustKarachi Port TrustAreas of housing schemes, industrial estates or other land under its jurisdiction which are leased to or developed by othersAll powers assigned to concerned Authorities by these Regulations framed under the Ordinance as amended from time to time From the contents of Column No,3 above it is evident that powers and duties conferred by the Regulations on Karachi Port Trust are confined to areas of housing schemes, industrial estates or other land under KPT's jurisdiction which are leased to or developed by others. The words "leased to or developed by others" in Column No,3 are important. These words clearly indicate that KPT shall act as "Concerned Authority" as defined in Regulation 1-4..1 only in relation to lands within its Jurisdiction which are leased by KPT to others and others have developed them on their own. However, where construction is to be raised by the KPT itself, then it cannot act as "Concerned Authority" and all such constructions are to be regulated by KBCA itself.
17. However, in present case we are of the opinion that the plot in question falls in Bath Island area.
18. This is so because firstly, KPT while submitting its application dated 24-11-2004 to KBCA has itself mentioned that the plot in question is located in Bath Island. In Suit No,1903 of 1986 also that was filed by KPT against the petitioner No,5 Society in the Court of XXI Civil Judge South, Karachi, the plot in question is shown to be within Bath Island area. Merely because the plot in question is owned by KPT does not mean that it also falls within KPT area. The object of dividing the city of Karachi in different zones and providing different standards of construction for each zone was intended to maintain area-wise standards of construction that are peculiar to a particular zone. The whole idea of dividing the entire city into various zones would be defeated if construction of a particular type of building which is permissible only in one zone is allowed to be constructed in another zone.
19. In the present case the building plans were scrutinized and approved by the Engineering Department of KPT and not by KBCA and that too by keeping in view the regulations applicable to Zone 'Awhereas the plot in question falls in Bath Island area which area is in Zone 'W. This is so because as stated earlier on account of delimitation of areas, the plot in question though belonging to KPT fell across the railway line into the limits of Bath Island area which is in Zone 'W.
20. Therefore, the construction on the plot in question is to be regulated by such Regulations that arc applicable to Zone 'Bonly and the authority which is empowered to approve building plans in Zone 'IV is KBCA. Therefore, building plans of the plot in question are to be approved by KBCA and not by KPT. We are therefore of the view that KPT ought to have taken approval of the building plans from KBCA as it initially attempted to do in November, 2004 when it applied to KBCA seeking its permission.
21. Mr. Manzoor Ahmed learned counsel for City District Government Karachi argued that the plot in question does not belong to KPT and is owned by City District Government Karachi and therefore KPT cannot be allowed to raise construction on the plot whose title is itself in dispute. In response to Mr. Manzoor Ahmed's assertion, Mr.Mushtaq A. Memon argued that the CDGK's plea that plot in question does not belong to KPT has no substance as KPT's ownership of the plot in question stood established before the Court of law when the decree to this effect was passed in Suit No,1903 of 1986. He further submitted that ownership of the Karachi Port Trust is admitted by the petitioner as well as by KBCA in the documents that they filed in support of their respective cases in the present petition.
22. The argument of Mr. Mushtaq A. Memon that KPT's ownership to the plot in question stood established in Suit No,1903 of 1986 is acceptable only against the petitioner No,5 Society as the petitioner No,5 Society was party to the said suit and not CDGK. The said suit therefore would operate as res judicata only against the petitioner No,5 Society. However, the contention of Mr. Manzoor Ahmed learned counsel for City District Government Karachi that plot in question does not belong to KPT also cannot be accepted. Firstly, CDGK even failed to file counter-affidavit in support of the claim of ownership to the plot in question, what to speak of filing any document in support of such claim. Therefore the oral plea of CDGK's counsel as to the claim of ownership cannot be accepted. Secondly, the petitioner No,5 vide its letter dated 31-3-2006 addressed to KBCA has also acknowledged KPT's ownership to the plot in question. In the circumstances there is nothing to doubt KPT's claim that it is owner of the plot in question.
23. It was also argued by petitioner's counsel that the construction of multi-storey building would be an environmental hazard and therefore prior to approval of building plans, permission ought to have been sought from environment protection agency under section 12 of Environment Protection Ordinance, 2002. Mr. Mushtaq A. Memon on the other hand submitted that there is no legal requirement to first obtain permission from Environmental Protection Agency before approval of the building plans. In our view the petitioner's argument that permission from Environment Protection Agency is to be first sought has no force for the reason that firstly it is a case of construction of a residential building. Secondly, when the building plans are submitted to KBCA, they are to be vetted by the master Plan and Environmental Control Department also. This takes case of the environmental effect of the building proposed to be constructed. Therefore, the question of first seeking permission for a residential building from Environment Protection Agency does not arise at all.
24. Learned counsel for the petitioner also argued that where there is involvement of cost of more than two million rupees, section 29 of KPT Act provides that KPT should first obtain permission from the federal government which is missing in the present case. As to this argument, Mr. Mushtaq A.
25. Memon has drawn our attention to page 339 of the court file where permission by Federal Government has been accorded to KPT. This letter takes care of the petitioner's objection as to the authorization from the Federal Government.
26. Mr. Mushtaq A. Memon has also argued that the case of the petitioners suffer from laches as the construction is going on since beginning of 2006 and the petitioners after serving notice on KBCA on 31-3-2006 remained silent for ten months and then suddenly filed the present petition on 3-2- 2007. In support of his arguments as to the laches, he has relied upon the cases reported in PLD 1960 Kar. 826, PLD 1976 SC 410, PLD 1977 Kar. 524 and PLD 1969 SC 223. In addition to the plea of laches, Mr. Mushtaq A. Memon had also argued that the petitioners have not come to the Court with clean hands as the way the letter dated 7-6-2007 was addressed to environmental protection agency to obtain information and the fact that in absence of any injunctive order passed by this Court against KPT, the advocate for the petitioner in his letter dated 15-2-2007 addressed to the Chairman KPT made a misstatement that this Court on 15-2-2007 has passed status quo orders. In view of such irresponsible and misleading statements on the part of petitioner's counsel Mr. Mushtaq A. Memon contended that the petition is liable to be dismissed without even examining its merits.
27. Insofar as the plea of laches is concerned, no doubt that in certain cases delay of few months disentitles a petitioner to pursue his remedy but such plea in our view could be agitated against a party when the controversy involved in the case falls within the domain of private disputes.
28. However, we are of the opinion that where a controversy falls within the domain of public interest then even if it is brought to the notice of the concerned authority belatedly, it is the statutory duty of the concerned authority to take appropriate remedial steps for eradication of illegality and where authority does not discharge its statutory duty, then Court is bound to issue appropriate directions irrespective of the delay in bringing the cause before the court. An illegal multi-storeyed building is not a wrong against an individual or a set of private individuals but is a wrong against the society. Therefore, such illegality cannot be condoned on the ground that challenge to it was belatedly initiated in a court of C law. Where a controversy falling within the domain of public interest and is not prosecuted by the person who has brought the lis before the Court, the Court has ample powers to proceed on its own motion with the matter and issue appropriate directions to the concerned authority or to a private respondent to right the wrong being committed against the society. The delay or disinterestedness of the petitioner in a controversy involving public interest or a plea of coming to court with unclean hands are of no legal consequence in such cases. The cases relied upon by Mr. Mushtaq Memon related to private disputes between individuals and are distinguishable on that score. In any case we find that petitioner No,5 Society questioned the legality of KPT's construction before KBCA on 31-3-2006 when the construction work was at its initial stage. KBCA on its part has been issuing show-cause notices to KPT from time to time and in all six show-cause notices were issued on 31-1-2006, 7-2-2006, 10-4-2006, 29-4-2006, 16-12-2006 and 6-2-2007. So the concerned Authority i,e, KBCA had been perusing the matter right from the initial stage. Thus the question of laches even otherwise does not arise in the present case.
29. In view of the above discussion we arc of the view that the plot in question fall's in Bath Island area and as this area is part of Zone '13in terms of Regulation No,25-9.2 of Karachi Building and Town Planning Regulations 2002, its construction is also to he regulated by the limits prescribed for such zone in the Regulations. Furthermore, as the plot in question is located in Zone 'B', its building plans are also to be scrutinized for approval by Karachi Building Control Authority. The Karachi Port Trust, the respondent No,4 in the present case is directed to submit his building plans to Karachi Building Control Authority for scrutiny. The Karachi Port Trust is also directed to immediately stop construction work on the plot in question until building plans are approved by Karachi Building Control Authority. Karachi Building Control Authority, is also directed to ensure that before according its approval, the building plans of Karachi Port Trust should conform to all requirements of the Regulations which are applicable to Zone Band any violation of any regulation should be dealt with by KBCA in accordance with law. This petition stands disposed of in the above terms.