1. ' MUNIB AHMAD KHAN, J.-- This petition has been filed with the following prayers:
(a) Direction be issued against the respondent No,1 to the effect that it should not allow the respondent No,2 to raise any illegal and unauthorized construction on the Plot bearing No, Com. 7/1, Block 2, Clifton, Karachi, in deviation of the approved plan; approved by the respondent No, I.
(b) Direction to the respondent No,1 to the effect that it should demolish the illegal and unlawful construction raised by the respondent No,2 or any other person on his behalf on the Plot bearing No, Com. 7/1, Block-2, Clifton, Karachi.
(c) Injunction be issued..
(d) Any other relief........
(e) Cost...
2. 'During the course of proceedings, C.M.A. No,3463/2008 has been filed by the respondent No,2 i.e, Builder with the prayer that respondent No,1, K.B.C.A. Be directed to process and decide the Regularization/Completion Plan dated 5-5-2006 submitted by respondents Nos.2 for 7 to 10 upper floors, for the project Green Belt Residency constructed on the subject plot in accordance with law.
3. 'Mr. Khalid Javed Khan, learned counsel for respondent No,2, has argued that to minimize the issue, he has made the above application and if regularization can be carried out in accordance with the Building Regulation then the upper floors of the building may be regularized, else respondent is ready to abide by the order of KBCA. On this request, Mr. Abdur Rehman objected that issuance of such directions on the above application will amount to killing of petitioner and that there is no provision under the law to regularize as entire Sindh Buildings Control Ordinance, 1979 is silent on the issue while regulations made thereunder cannot go contrary. In such a situation and in the wake of above controversy between the advocates, entire petition, with their consent, has been taken up for hearing.
4. 'Mr. Abdul Rehman, learned counsel appearing for petitioner No,2 has pointed out that there is only penalty clause i.e, 19 of the Sindh Building Control Ordinance, 1979 which provides punishment against the contravention of the building laws and in that very section there is no regularization while only compounding of an offence can be done and that too on the payment of certain fees.
5. He submits that the liability in respect of civil action by raising the construction is a different thing while penalty for committing such offence is different and .That has only been dealt with under section 19 of the said Ordinance.
6. 'He further submits that under the Buildings Control Ordinance, there is no section for regularization and that the regularization is to be made under section 21-A of the Ordinance which too provide that the regularization should not be inconsistent with the provision of the Ordinance. He further stated that even compounding of the offences is restricted for certain period of offences in terms of section 19 of the Ordinance. He further argued that section 19 of the Ordinance was amended by Ordinance No, III of 1982 and thereafter further amended by Ordinance No, XXXVII of 2001 and that Ordinance has already lived its life as it was only for a period of one year and thereafter subsections (1-A) and (1-B) of section 19 of the Ordinance are no more available. Learned counsel has further referred the case of Abdul Razak y. Karachi Building Control Authority and others, PLD 1994 SC 512 and has pointed out para. 17 of the judgments and argued that there is mark of distinction between the criminal liability under section 19 of the Ordinance and civil liability under the Regulation. He submits that although the authority can compound the offence but violation in construction cannot be regularized. He further stated that although there is a decision i.e, Multiline Associates v. Ardeshir Cawasjee and others, PLD 1995 SC 423 but that judgment is no more alive and now another judgment of the Honourable apex Court reported as Ardeshire Cawasjee and 10 others v. Karachi Building Control Authority and 4 others, 1999 SCMR 2883, is applicable known as Costa Livina case.
7. 'He has further pointed out Para. 19 of the judgment and stated that the case of Abdul Razak (supra) has been approved by the case of Costa Livina while case of Multiline (supra) has been overruled. He has further submitted that there is no concept of regularization nor there is a provision under the Regulation and if the regularization is taken in hand then it will be contrary to the order of the Honourable Supreme Court. He submits that Regulations 3-2.20 and 3-2.21 in respect of the regularization are contrary to the Ordinance and should be struck down. In support of his contention, he has further relied upon the case laws of Indian origin reported in (1998) 5 Supreme Court Cases 513 and (1993) 4 Supreme Court Cases 10 and Porter and another v. Magill.
8. 'Learned counsel, concluding his arguments, has also referred a case law in support of the entire scenario of the instant case, reported as PLD 1958 SC 104 on the point that if anything is void then every thing following it is also void and since builder has violated the law with clear intention then it is every act following the earlier is contrary to law and must be disapproved.
9. 'The theme of arguments of Mr. Abdur Rehman, learned counsel for the petitioner No,2 is that regularization at any cost cannot be taken in hand nor there is a provision under the law while regularization scheme providing such regularization are contrary to law, therefore, the builder should not be granted any such permission nor any direction be issued to KBCA for regularization.
10. 'On the other hand, Mr. Khalid Javed Khan, learned counsel for respondent No,2 stated that although there are certain findings of the Honourable Supreme Court in respect of the construction of building but in no case regulations in respect of regularization have been struck down and they still subsist in the statute book. He submits that in the case of Ardeshir Cowasjee v. KBCA (supra) the Honourable Supreme Court has discussed the regularization. He submits that the building which has been taken in hand by the respondent No,2 is not contrary to the environment in which several multi-storeyed buildings have already been constructed while only respondent No,2's building has been targeted for personal reason as the petitioners have some personal bias with the respondent No,2.
11. 'After hearing the learned counsel, it will be necessary to point out that section 19 of Ordinance V of 1979 is in respect of penalty which is reproduced as under:-- "19. Penalty.---(1) whoever has contravened any provision of this Ordinance shall be punished with simple imprisonment for a term not exceeding six months or with fine not less than ten thousand rupees, or with both.
(2) No Court shall take cognizance of an offence under this Ordinance except upon a complaint in writing made by the Authority or any person authorised by it."
12. The above section went through amendment by Ordinance III of 1982 in the following words, which is as follows:-- "(1) Whoever contravenes any provision of this Ordinance, shall be punished with simple imprisonment for a term not exceeding two years or with fine not less than twenty thousand rupees or with both and if the offence is a continuing one, further fine not exceeding five hundred rupees for each day after the date of the first Commission of the offence.
13. (1-A) The authority or any person authorized by it in this behalf may compound any offence under this Ordinance on such terms and conditions as may be prescribed."
14. 'Section 19, thereafter, was further amendment by Ordinance XXXVI of 2001 and section 1(A) was substituted by subsections (1-A), (1-B) and (1-C). Anyhow, it is to be noted that in Ordinance XXXVII of 2001, it was specifically mentioned that the amendment in respect of subsections (1-A) and (1-B) shall remain in force for twelve months only and thereafter the original subsection (1-A) shall stand revived. For the convenience, section 2 of the Amending Ordinance is as follows:- "(2) Amendment of section 19 of Sindh Ordinance No, V of 1979.---In the Sindh Buildings Control Ordinance, 1979, in section 19--
(i) for subsection (1-A) including its proviso, the following subsections (1-A) and (1-B) shall be substituted which shall remain in force for a period of twelve months from the commencement of this Ordinance and thereafter the original subsection (1-A) shall stand revived."
15. In the above given situation, the original section 19 has been revived as Ordinance XXXVII of 2001 has lived its life and provision of subsections (1-A), (1-B) and (1-C) are no more there as provided in the above Ordinance while original section 19 given in the Ordinance, 1979 and as amendment by Ordinance, 1982 has come into force. Although in the Ordinance, there is no provision in section 19 for regularization but section 21-A provides for regulation with the authority that the regulations be framed in consistent with the Ordinance and following that certain regulations including Regulatic 3-2.20 and 21 have been provided whi are in respect of regularization of work a relevant part are reproduced as follows:- "3-2.20.2 If such person fails show sufficient cause to t satisfaction of the concern Authority why such building wot or part thereof should not removed or altered, the Karac Building Control Authority m take the following actions.
16. (a)..................
17. OR
(b) to alter the works so as to bring it into conformity with these regulations;
(c) Regularize the violations in the existing structuring after realization of regularization on fee as per Table I & II, depends on the nature and merits of the case, provided that no violation shall be regularized;"
18. "3-2-21-1. Notwithstanding any other provisions of Karachi Building and Town Planning Regulations, the Authority under SBCO, 1979 hereby declares one time amnesty for regularization of violation of building works including:--
(a) Regularization of violations relating to building works carried out prior to commencement of this notification in contravention of Karachi Building and Town Planning Regulations 2002 on payment of regularization fee and other charges as per Tables III, IV and V.
(b) Regularization of violations relating to the cases of change of land use shall be considered to the extent of existing violative use of building but subsequent conversion in other uses whatsoever shall not be allowed."
19. 'Similar to the above regulations in the Regulations 2002, there were Regulations of 1979 of KBCA and Regulations 16, 20 and 25 were in respect of regularization. Keeping in view the wordings of SBCO as well as regulations framed thereunder and their confirm existence in a longer period establish that the regulations especially in respect of the B regularization are binding, it can be observed that if there is any violation of building in any respect then it is the KBCA to take up the issue after inspection it may take action in accordance with regulations and if the building is regularizable then to regularize it. Similar view has been taken in the case of Ardeshir Cowasjee v.
20. Karachi Building Control Authority reported in PLD 2006 Karachi 63, which is as follows:-- "and while dismissing the constitutional petition we would direct the Karachi Building Control Authority to critically examine the construction raised or being raised as to whether the same is in accordance with the approved plan, and deviations, if any, being not regularizable, shall be removed/demolished by the competent authority within a period of three (3) months under intimation to this Court."
21. 'In another case of Anwar Shah v. Province of Sindh and others, 2001 YLR 2984, the Division Bench of this Court has held as follows:- "The question whether the existing construction is regularized of K.B.C.A or the same is regularizable, would be for K.B.C.A to decide and in case it is so, the demolition/removal work will not be carried out but in case it has not been regularized or could not be regularized according to rules and bye- laws, the K.B.C.A would perform its statutory obligation in accordance with rules and bye-laws and compliance report will be submitted with two months."
22. 'The vires of Karachi Building Control Authority Regulations also come under discussions in another case reported as Zaheer Ahmed Chaudhry and 9 others v. City District Government, Karachi through Nazim-e-Ala and 13 others, 2006 YLR 2537, the following observation was given by this Court:-- "We are therefore of the considered opinion that the Honourable Supreme Court while holding that the Karachi Building and Town Planning Regulations, 1979 has the statutory force must have kept this principle of law in view and consequently it is held that the Karachi Building and Town Planning Regulations, 1979 and the Karachi Building and Town Planning Regulations, 2002 which has replaced the earlier regulations have been framed competently in exercise of the authority under section 21-A (3) of the Sindh Buildings Control Ordinance, 1979 and is therefore intra vires, legal, valid and has statutory force."
23. ' On the issue of regularization another matter was taken up before the Honourable Supreme Court and same is reported as Jawad Mir Muhammad and others. v. Haroon Mirza and others, PLD 2007 SC 472 and Para. 13 of that authority is relevant, which reads as follows:-- "(13) From a perusal of the above quotations from the judgment in the case of Ardeshir Cowasjee 1999 SCMR 2883 following inference or deductions can be made:-- (i)
24. (ii)..
25. (iii)..
(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."
26. ' The Regulations of 2002 do still stand and have not been challenged nor have been struck down in any case. Although the case of Abdul Razak (supra) has been approved by 1999 SCMR 2883 but the crux of contention in this petition has been solved by Para. 21 of the judgment of Honourable Supreme Court in that authority, which is as follows:-- "(21) The above conclusion recorded in the case of Multiline Association 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)
27. (supra) highlighted hereinabove. With due defence, we are unable to subscribe to the above view found favour in the case of Multiline Associates v. Ardeshir Cowasjee and others (PLD 1995 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 1994 SC 512) is in consonance with the provisions of the 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 favouring an individual. Simpliciter the factum, that on account of tremendous increase in the population in Karachi the situation demands raising of high-rise buildings, will not justify the conversion of residential plots originally intended to be used for building ground-plus-one and allowing the raising of high-rise buildings thereon without providing for required water, electricity, gas, sewerage lines, streets and roads etc."
28. 'In the above para, it has been specifically mentioned that power to regularize contained in the Ordinance and the Regulations is intended and designed to be exercised when the irregularity is of the nature which does not change the complexion or character of the originally proposed construction. The said authority has also discussed the nature of change in the use of plot, its location in the amenity plot and its effects.
29. In the light of above authorities as well as keeping in view the scheme of law and regulations, we have observed that K.B.C.A is sitting as a watch dog to inspect, monitor and regularize the work of the buildings with certain limitations, which have been imposed upon K.B.C.A by the law and that the violation of the building c should not be of the nature that it may change the complexion of the building or convert its status from one category to another category or to cause public nuisance.
30. The regularization can be ordered keeping in view the public interest as well as construction in the environment and need as well as interest of the people, which can be a basic requirement.
31. In the instant case, there is no dispute in respect of the nature of plot as the same is a commercial plot while the only objection is that four extra floors i.e, 7 to 10 floors in the subject building have been constructed contrary to the approved building plan. Apparently and admittedly there are building having much more storeyes in the vicinity. Therefore, keeping in view the dicta laid down in 1999 SCMR 2883, we are of the opinion that power to regulate building and to regularize in accordance with Buildings Regulations do vest with the authority under the Sindh Building Control Ordinance which in the case of Karachi is K.B.C.A: It is very natural that when a building is constructed D in violation of the building laws then to treat it in accordance with law, certain alterations or corrections are to be made and thereafter the word "regularization" can be used. The Regulations 2002 made under section 21-A of SBCO or the previous Regulations do carry regularization provisions which give power to K.B.C.A to take up the issue of regularization.
32. Therefore, in the light of above authorities and discussions, we dismiss this petition along with listed applications with directions to K.B.C.A that to treat and take up the application of builder in accordance with law for regularization according to its law and regulations keeping in view Para. 21 of the judgment of 1999 SCMR 2883 and finalize the same in either way within a period of two months.