WAFI ASSOCIATES (PVT.) LIMITED vs FAROOQ HAMID and others

' RAJA FAYYAZ AHMAD, J.--- This Civil Revision Petition has been directed against the order dated 6- 8-2007 passed by this Court in the proceedings commenced during hearing of CPLA No,533-L of 2006 in Suo Motu exercise of the powers, for the detailed reasons to be given later in view of the categoric statement made by the learned Sr. Advocate Supreme Court on the instructions received from the Builder present in the Court to the effect that the owner shall himself remove the 11th Floor of the above-named multistoreyed plaza, accordingly he was allowed three months' time for the purpose. The project has been named and known as 'Big City Plaza' situated at Plot No,3-Block-E-III, Gulberg-III, Lahore. The short order passed by this Court reads as under:--- "(16) For detailed reasons to be given later in view of the construction of the eleventh floor being in complete violation of law, the learned Sr. Advocate Supreme Court for the builder on instructions received from the builder, present in Court, submits that the owner shall himself remove the said floor. He is allowed three months time for the purpose.

(17) After the removal of the said eleventh floor upwards steps shall then taken to have the structure stability examined and also to examine any other violation of law committed by the owner. Re-list."

2. The precise relevant facts culminating into passing of the above order are that one Farooq Hamid and others in CPLA No,553-L of 2006 filed a suit for declaration, perpetual injunction and damages alleging that the project which is the subject matter of the petition i,e, the `Boulevard Heights' is violative of the LDA Building Regulations as the mandatory requirements for construction of the said project have not been met for instance, without soil testing the work is being carried out without proper piling as designed by the Structural Engineer of the said project. The work on the said site has been commenced in violation of the original design submitted by the Builders/Structural Engineer Mr. Zia-ud-Din Mian who issued the Structural Stability Certificate dated 5-9-2004 and was withdrawn for the following reasons:-- "That at this stage it has come to my knowledge that the owners of the building, instead of the plans vetted and signed by me, submitted some other plans which were not even shown to me to the LDA and got the plans approved merely on the basis of the certificate issued by me.

' That the owners have since long started the construction without following the design vetted by me.

' That the owners or the builders never bothered to inform me at any stage of construction to check the quality construction viz-aviz. Design vetted by me.

' That under the circumstances I am regretfully constrained to disassociate myself from the structural stability certificate and wish to withdraw the same."

3. The learned counsel for the petitioner in C.P.L.A. No,533-L of 2006 submitted that as per above- referred report of the Structural Engineer, the petitioner's house located adjacent to the project has developed serious cracks rendering the petitioner to leave the said house for safety of the inmates and thus; shifted to some other building." The learned counsel further submitted that not only the said project is being constructed in violation of the Building Regulations of the LDA but also the law laid down by this Court in the case of Ms Shela Zia and others v. WAPDA PLD 1994 SC 693 has been violated . After hearing the learned counsel following order was passed by this Court on 18-4-2006.

"(5) The afore-referred concerns and contentions have not been specifically adverted to by the Courts below. However, since it is a huge project having potential for economic development and the construction is on, before issuing notice to the private respondents, we would like to direct Regulatory Authority i,e, the Director General, Lahore Development Authority to file a concise statement specifically adverting to the afore-referred concerns and issues along with expert opinion of the Director Town Planning. The report shall be submitted by or before the next date of hearing. Learned Advocate General, Punjab shall also personally appear to assist the Court.

(6) Adjourned to 25-4-2006"

4. On the date fixed in the matter notice was directed to be issued to all the respondents except respondents Nos.1 to 4 already been represented by the Legal Advisor for the LDA. It appears that notices issued to respondents Nos.6 and 7 (Zia-ud-Din Mian, Consulting Engineer, University of Engineering and Technology, Lahore) could not be served and the matter was adjourned to 2-5- 2006 with the direction that notices be served by the LDA on unserved respondents to whom notice be issued by courier service. The matter was partly heard on 2-5-2006 and on the request of the learned Advocate Supreme Court for the private respondents adjourned to 3-5-2006, on which date the Director General, LDA and the concerned Officer Incharge of the LDA dealing with such like buildings and constructions were directed to appear in person, with complete record.

5. On subsequent date i,e, 17-7-2006 this Court during the course of hearing of the matter observed a horrifying picture of the performance of the concerned Authorities of the LDA in the light whereof this Court was inclined to take action against the delinquent concerned officers but the then DG sought time to look into the matter himself and take appropriate action and remedial measures as well. After having heard the parties' learned counsel, respondent No,7 (Zia-ud-Din Mian) and the material brought on record, a detailed order reproduced hereinbelow as passed by this Court on 19-7-2006:-- "(1) Claiming to be owners of a house bearing No,19-K of Block-B of Gulberg-II, Lahore, the petitioners filed a suit in the Court of the learned Senior Civil Judge at Lahore alleging that Pervaiz Hussain respondent who was the owner of the adjacent Property bearing No,11-K of Gulberg had started constructing a multi-storeyed shopping-cum-residential plaza at the said site under the name of 'Boulevard Heights', that the excavation done by the said respondent in the plot in question had led to a severe lateral movement of the ground under the petitioner's house towards the excavated site which had caused cracks and consequent serious damage to the petitioner's said property; that the said respondent No,6 had started the said construction without any legal and bona fide sanction for the said purpose; that the piles constructed by the said respondent in the excavated site were faulty as the same did not offer the requisite retaining strength which could resist the lateral soil pressure of the ground underneath the petitioners' house and the said multi-storeyed plaza was being constructed also in violation of mandatory provisions of Regulations No,9(iii), 42, 66(d) (iv) and 81 of the Buildings Regulations of the Lahore Development Authority as also in violation of the provisions of section 12 of the Pakistan Environmental Protection Act of 1997. It had been consequently prayed, inter alia, that it be declared that the sanctioning of the said building's plan was collusive and illegal and that the excavation in the plot in question was in serious violation of law and was a serious threat to the lives and the property of the petitioners and of others. A permit injunction was consequently sought restraining the said respondent from undertaking any further excavation and construction at the site in question and a decree was also prayed directing the said respondent to pay damages to the petitioners in the sum of Rs,109,000,000. Along with the said suit the petitioner had also filed an application for the grant of a temporary injunction in the above-mentioned terms.

(2) Through an order dated 28-11-2005 the learned trial Judge refused to order stoppage of the construction in question at the said site but directed the respondent builder and the respondent LDA to ensure protection of the property and the lives of the petitioners. Feeling dissatisfied with the order, the petitioners approached the Lahore High Court through FAO No,324 of 2005 which appeal was dismissed through the impugned order dated 17-2-2006.

(3) Hence this petition.

(4) We have heard the learned Advocate Supreme Court for the petitioners at some length. We have also had the benefit of the assistance from the learned Advocate Supreme Court for the LDA as also of the learned Advocate Supreme Court representing the builder i,e, respondent No,6.

(5) The site in question where the said building is being constructed adjoins the house of the petitioners on one side and the main Boulevard of Gulberg Lahore, on the other. The plan of the builder is to construct 17 storeys above the ground comprising shopping arcades and residential apartments etc. And to cater for the parking requirements of the occupants and of the users of the said building, he also intended to construct four under-ground basements as parking lots. This necessitated digging at the site in question upto around 50 feet below the ground level. The builder claims to have taken steps i,e, construction of piles etc. To provide support to the adjoining areas on all sides despite which, it is not denied that some damage had not caused to the property of the petitioners. It is also a fact admitted on all sides that the LDA had sanctioned the building plan of the building in question but only upto the ground level in the first instance though it is alleged by the petitioners that said sanction was collusive and illegal.

(6). The last two decades had witnessed a new culture in the city of Lahore i,e, construction of high- rise comprising of shopping complexes, residential apartments and even cinema-houses etc. The main Boulevard of Gulberg, for instance, which was once a purely residential area appears to have become a focus of multi-storeyed commercial buildings. Each residential plot on the said main Boulevard comprised of 8 to 10 Kanals of land wherein 10 to 15 persons including the owner and the servants resided. Presently, on each such plot, multi-storeyed buildings have been and are being built which are used by hundreds of persons every day i,e, the ones living there and the ones visiting the shopping arcades etc. Provided therein. Needless to say that such a huge multiplicity of users of each of the said plots is likely to cause problems of immense magnitude, inter alia, in the matter of capacity of roads catering for the resultant traffic; the parking space for the vehicles being used by the said users the availability of adequate water supply catering for such a large number of persons; the capacity of sewerage facilities for draining the water and the sewage caused by such users and so on. Before the advent of this new are of multi-storeyed plazas, single storeyed or at the most two storeyed houses existed on said plots which were used by the ones constructing them or the tenants inducted therein. On account of the comparatively small nature of the construction raised and smaller number of individuals using the same, the structural stability of the said houses was never a serious issue.

(7). The present situation, however, is that an investor/builder constructs a multistoreyed high-riser; generally sells the shops and the residential apartments to the public and then disappears. The constructions so raised and sold are then used, as have been mentioned above, by hundreds of people. Any weakness in such a huge structure and any lapse in the structural designs or the quality of the same could endanger not only the lives of the ones using the said building but also of those in the adjoining properties and areas besides causing threat to the said adjoining properties themselves. We went through the Buildings Regulations framed by the Lahore Development Authority as amended from time to time which do make some provision for ensuring the said structural stability of such-like building and of the quality of construction. But during the course of proceedings, we were horrified to notice the required supervision and the control to be carried out and exercised by the Lahore Development Authority was completely absent which was criminal neglect of duties on the part of the concerned officials in the LDA.

(8) The provisions of Pakistan Environmental Protection Act of 1997 demand environmental impact assessm ent of each such project before any plan for the construction of the same could be sanctioned. The LDA Authorities seem never to have complied with the said provisions. Regulations Nos.66 and 81 of the above-mentioned Regulations envisage soil investigation of the site where a multi-storeyed building was to be raised to find out whether the soil could take the load intended to cause on the time. There is no evidence before us that the LDA Authority ever demanded any such investigation before sanctioning the building plan of any such high-rise structure. The builder of any building comprising three storeys or more was required to employ a Structure Engineer to do the structural design for such a building to ensure stability of the same as per Regulation No,9

(iv) and such Structure Engineer was not only required to certify the stability of such a structure but also to personally visit the same at various stages of the construction and to certify that the construction was being raised to his satisfaction and in accordance with the design. This was the requirement of Regulation 14(iv) of the said Regulations. As per Regulation No,42, any excavation more than 14 feet deep was required to be inspected the Building Inspector of the LDA at least once a week in addition to which he was also required to carry out an inspection whenever there was a change in weather conditions.

(9) We were surprised to find that the LDA never cared to ensure compliance of any such mandatory requirements.

(10) So far as the building in question is concerned, it was the case of the respondent owner that the plan submitted by him to the LDA had been sanctioned upto the plinth level; that he was thus not carrying out any construction without a sanctioned building plan; that Dr. Zia-ud-Din Mian had been engaged by him as the Structure Engineer who had done structural designing of the said building and had certified its stability; that after the said Dr. Zia-ud-Din Mian had disassociated himself from the said project, he had hired Dr. Javed Younis Upal as the Structure Engineer who had also certified the structural stability of the construction being done at the site; that all the possible steps had been taken by him to ensure that no damage at all was caused to any of the adjoining properties and that if any such damage had, however, got caused then he was willing to compensate the affected persons from the same; that lie was the only builder who had provided four basements to cater for the parking of the vehicles of the persons likely to use the said building and finally that he had committed no illegality in the construction of the building in question and that in future also he, would continue to abide by all the laws regulating the subject.

(11) As has been noticed above, the matter in hand does not remain confined only to the building in question being raised by respondent No,6 and is in fact a matter which concern the public at large and all the multi-storeyed buildings being constructed at least in the city of Lahore. On our call, the LDA has submitted a tentative list of more than one hundred buildings comprising of three storeys and more which were being constructed in various parts of the city of Lahore including the areas in the old city like Shah Alain Gate etc. This list submitted by the LDA is however not exhaustive and the number of such buildings could be much more.

(12) The situation is alarming. Such a large number of multistoreyed high-rise buildings are being constructed all over the city without ensuring compliance of security measures; proper supervision and adhere to the law regulating the subject and the same are thus a serious hazard to the safety of the people and the properties. Since the Authority obliged to take steps in the matter has failed to do so, therefore, we feel compelled to take appropriate steps in the large interest of the public who have a constitutional right to the protection of their lives and properties.

(13) Another dimension of his problem which stuck us was that, as has been mentioned above, investors/builders of such like buildings raise the construction; sell shops and residential apartments etc. To the public and then leave the area. More than one serious question, therefore, arise. The first question is as to what is which each of the hundreds of persons who purchase shops and flats etc. In such-like buildings, own? And in case, God forbid, any such building gets destroyed through some accident or Act of God, then what is that each individual who had lacs of rupees to own some such shops or flats in this building, if left with? The second question is how was such a huge structure and various expensive equipments and facilities which were common to all the users to be maintained e.g. The air-conditioning plant, electricity supply, the elevators, the common passage?

(14) Having considered all aspects of the matter and having heard all concerned, we direct as under:--

(I) So far as the issue of the building in question i,e, 'Boulevard Heights' is concerned, it is ordered with the consent of all the parties that;

(a) till further orders respondent No,6 shall not raise any construction beyond the plinth level but upto the said level, he will be at liberty to continue with the construction.

(b) With consent of the parties and at their initiation, Messrs Mushtaq and Bilal, Consulting Engineers with their office at 302 Noor Estate, Sharah Faisal, Karachi are appointed as a commission who shall carry out a study of the project in question and then submit a report about the structural stability of the said buildings; about the quality control thereof and the material uses therein; about effectiveness of the strength of the retaining walls and the concrete structure in the basement and to assess the damage, if any, caused to the property of the petitioner located at 19- B Gulberg-II i,e, adjacent to the building in question and also to identify the causes leading to the said damage.

(15) The LDA is directed to carry out a similar exercise with respect to the other multi-storeyed buildings being constructed in the city by hiring some duly qualified consultants who would also submit their report with respect to each of the said buildings including a report whether the same were being constructed in compliance with all the rules and regulations governing the subject including the compliance of the provisions of the Pakistan Environmental Protection Act, 1997.

(16) We are surprised when we are told that no Structure Engineer is available in the LDA and that the construction of such like high-rise buildings was going on in the city in the absence of any such engineer being available with the regulatory body and supervisory authority i,e, the LDA. The LDA is directed to take immediate steps for the requirement of Structure Engineers at all levels in the authority through the Public Service Commission and till the said recruitment is finalized, they shall be at liberty to employ any duly qualified person for the purpose who shall carry out periodical inspections of the buildings in question in accordance with law.

(17) The competent authority is also directed to take disciplinary action against the Chief Metropolitan Planner of the LDA, the Director Incharge of Town Planning in the LDA, the Director TIPA in the LDA, the Deputy Director (DP), the Assistant Director (DP) and the Buildings Inspectors etc. Who were obliged to ensure compliance of all laws in the matter of sanctioning of the buildings plans and ensuring the structural stability of the building in question and of other similar buildings and who had failed to do the same. Report of the action taken by the competent authority shall be submitted to this Court on the next date of hearing.

(18) The Government of Punjab shall immediately consider initiation of steps for making laws regarding multiple ownership i,e, protection of the interests of the said occupants of such like high- rise buildings including the steps for providing an insurance cover for the said owners and the steps for maintenance of common facilities therein. The Zila Nazim of Lahore and the Director General of LDA shall also submit a report whether they had taken any steps to equip themselves to meet any emergent situations vis-a-vis such-like buildings in case of any fire or some such other accident or calamity affecting the same.

(19) This petition shall now be set down for further hearing after summer vacations either at Lahore or Islamabad according to availability of the Bench."

6. The main case after summer vacations was re-listed before the Court on 19-4-2007 on which date for the given reason was adjourned to 26-4-2007 and again re-listed for 7-5-2007 for the reasons mentioned in the order of the Court.

7. On 11-5-2007 a detailed order was passed by this Court with the consent of all those present before the Court; a Commission was appointed by the Court to be manned as its Chairman and Convener Mr. Justice (R) Riaz Kiyani, a nominee of the Vice-Chancellor of the University of Engineering and Technology, Lahore from the field of Structure Engineering and Mr. Kamil Khan Mumtaz, the Town Planner and Engineer from the private sector. The order passed by this Court on 11-5-2007 reads as under:-- "(1) We have had the benefit of the assistance of the learned Advocate-General for Punjab, Malik Muhammad Qayyum, Advocate Supreme Court for the LDA with Mian Qamar-uzZaman, Legal Advisor, Mr. Mansoor Ali Shah, Advocate Supreme Court for the petitioners and Mr. Shahid Karim, Advocate Supreme Court for respondent No,6. We have also heard the submission made by the four Town Nazims of Lahore present on our call.

(2). While hearing this matter in the month of July last year, we were horrified to notice that the Lahore Development Authority and other governmental agencies had allowed construction of high-rise buildings in the city of Lahore without following the laws regulating the subject as a result whereof these multistoreyed buildings had become a grave threat to the lives and properties not only of the people living, occupying or using the said buildings but also of multitude of others i,e, the neighbours, the visitors and even the ones passing by. The height of callousness and disregarded for human lives and properties shown by them as evident, inter alia, from the fact that not even a single structure engineer was available with the LDA who could have checked, supervised or ensured the structural stability of these structures. Nor had any steps even been taken by the LDA to check the bearing capacity of the soil where these were being raised. We had consequently passed an order on 19-7-2006 carrying some directions to be followed in the matter.

The said order would be read as a part of this order.

(3) On the last date of hearing, the Town Planning Officer of the LDA, however, informed us that the LDA was not the building control authority for the entire city of Lahore; that only a part of the said city was with them for the purpose and the major part of the city, for the said purpose, was with the Town Administration. This is why we asked for the appearance of four of the Town Nazims of the city of Lahore who are consequently present and have been heard.

(4) Some further shocking aspects which have surfaced during the proceedings in this matter today, are:-

(a) that neither the LDA nor the city or Town Governments/ Administrations know which part of the city of Lahore for the purpose of construction of the building in question, falls within whose jurisdiction;

(b) the Town Nazim submit that commercialization of areas even within their respective controls was not with them but the sanctioning of plans for buildings including high-rise buildings did fall within their power and that the plans for high-rise buildings within their respective jurisdiction were being sanctioned by them;

(c) they, however, ambit and in fact complain that no qualified engineers etc. Were available with them to assess the structural stability aspects of the high-rise buildings which they were allowing to be constructed nor did they have any technical experts available with them who could ensure quality control or supervise such-like structures and add that they do not have the authority to appoint any such persons in their respective Governments/Administrations.

(5) The situation is appalling. The need for strictest of controls on the construction of high-rise buildings hardly requires any emphasis. Such-like buildings if not constructed under the requisite checks and in conformity with the laws and regulations governing the subject, could become death traps for hundreds of innocent and even un-concerned persons besides immeasurable loss to the properties. Examples of such-like disasters in different cities including city of Lahore are not un-known. We were also surprised to notice from the list of such-like buildings submitted before us that at least fifty-five high-rise buildings had been allowed to be constructed in Shah Alam Gate area which was already a more than crowded part of the city. We have also noticed that construction of similar building had been sanctioned even in the walled city and the said buildings were being raised even on plots measuring around 5 Marlas of land.

(6) It was the kind of a conduct displayed by the concerned governmental departments and agencies that we had felt compelled to intervene to protect the lives and properties of the public and had passed the above-mentioned, somewhat, detailed order on 19-7-2006 carrying some instructions and directions for the concerned authorities. The learned Advocate-General reports to us that some steps were being taken in compliance with the said directions but we are pained to notice that despite a lapse of one year, the interest and the progress shown in the matter was far from being satisfactory so much that different agencies and the city of Lahore e.g. The LDA and the Town Administration did not even know as to which city is the relevant authority/administration and for what purpose.

(7) In the circumstances, we are left with no option but to say that construction of high-rise buildings in Lahore having more than three storeys, till further orders in order to protect the precious and the valuable properties of the public and it is so ordered. Malik Muhammad Qayyum, Advocate Supreme Court appearing for the LDA, however, pointed out that such an order could cause some hue and cry amongst the builders or persons affected thereby. Having considered this aspect of the matter, we find that extraordinary steps are required to be taken to meet extraordinary situations like the one in hand when no more appears to be feeling concerned with the rights and interests of the public at large. In any case, the interest of few builders could not be permitted to expose the lives and the properties of hundreds and thousands of citizens to high risk and danger. We are, however, mindful that we should ensure minimum interference with lawful pursuit of business by law acting builders and individuals.

(8) A Commission is, therefore, appointed by us, with the consent of all those present, which Commission:--

(a) shall survey and inspect each and every high-rise building i,e, the buildings having three storeys or more in Lahore whether under construction or even where the construction is complete;

(b) shall find out whether such buildings are constructed after the sanctioning of the plans for the purpose in accordance with law; and

(c) where the plans had been sanctioned then whether it had been so done after complying with all the requisite requirements i,e, the rules, the regulations and the laws governing the subject including taking of steps to assess the load bearing capacity of the soil, the availability of the necessary infra-structure to cater for the impact created by such-like buildings and the measures to ensure the structure stability.

(9) The Commission should also feel free to notify us of any other incidental or ancillary matters which come to its notice though not specifically mentioned above.

(10) The Commission shall also inspect all high-rise buildings which had already been constructed and completed and shall submit a report whether the requisite parts of them shown to have reserved for certain legally commanded purposes were being actually used for the said purpose or whether they had been converted to some other use e.g. It is complained that most of the areas shown as parking lots in the plans while securing sanction for construction of such-like structures had, after completing the structures had been converted into shops and were used as such as a result whereof the public roads had become the parking lots for those high-rise buildings which had made those roads absolutely un-usable for traffic.

11. All those present agree to the appointment of the following gentlemen to man the said Commission:---

(a) Mr. Justice (R) Riaz Kiyani as its Chairman and convener;

(b) A nominee of the Vice-Chancellor of the University of Engineering and Technology at Lahore from the field of structure engineering; and

(c) Kamil Khan Mumtaz, the Town Planner and Engineer from the private sector.

(12) With the consent of the parties the fee of the Chairman of the Commission is fixed at Rs,2,50,000 (rupees two lacs and fifty thousand) per month which shall initially be paid by the Government of Punjab in the Housing and Physical Planning Department whereafter it shall be open to the said Government to seek proportionate contributions towards the said end from the LDA, the City Government and the relevant Town Administrations. The matter of fee of the nominee of the Vice-Chancellor and Kamil Khan Mumtaz, shall be Handled by the learned Advocate General and whatever fee is required to be paid to them shall be paid in the manner above-mentioned.

(13) It is also ordered and clarified that any builder of the buildings in question who feels aggrieved of this order and who also feels that he is raising the construction after compliance of all the requisite laws and conditions, shall be free to move this Court to seek permission to continue with the construction.

(14) So far as the building being constructed by respondent No,6 is concerned it shall be open to the builder to move for the sanctioning of the plans for the structure above the ground level and in turn, it will be permissible for the LDA to undertake the requisite exercise for the said purpose. So far as the further construction of this building is concerned, the same shall follow the above order passed with respect to all other high-rise buildings.

(15) The learned Advocate Supreme Court for the LDA has placed before us a list of cases where some interim orders stand passed by some learned Courts regarding high-rise buildings. It is ordered that all such interim orders shall be read and be subject to the above orders passed by this Court today.

(16) Khalid Abdul Rehman Architect under notice need not appear, in person on the future dates of hearing unless specifically summoned by this Court.

(17) This matter shall now be listed for further hearing on 24-5-2007. In case any larger Bench be in session on the said date then this Bench will hear this case after the larger Bench rises.

18. The Town Nazims present today, need not appear before this Court, in person, on the future dates of hearing unless specifically summoned.

(19) All the Government Departments, agencies, authorities and the Town Administration shall afford every possible assistance required by the Commission.

(20) A copy of this order shall be sent to the Capital City Police Officer of Lahore who shall immediately communicate the same to all the S.H.Os, in Lahore which S.H.Os. Shall be personally responsible to ensure compliance of the stay order passed in the matter.

(21) Copies of this order shall also be sent to Mr. Justice (R) Riaz Kiyani, the Vice-Chancellor of the University of Engineering and Technology, Lahore and Kamil Khan Mumtaz for information and compliance."

8. After that the matter was taken up on 24-5-2007 by the Court on which date the Zila Nazim, Lahore who was also the Chairman of the LDA entered appearance in person and submitted before the Court that the order passed by this Court on the last date of hearing would go a long way in helping the concerned Authorities to ensure the construction of high-rise buildings in the city in accordance with law and under the requisite controls and checks. The Zila Nazim, Lahore also submitted a list of more than one thousand high-rise buildings i,e, 3 storeys and above which had been constructed in the city without proper and valid sanctioning of the plans for the purpose, by adding that some relaxation be ordered with respect to certain categories of under construction high-rise buildings such as; some Five Star Hotels, Hospitals, Government and other educational institutions. The buildings being constructed by foreign investors i,e, Sheikh Zayed Centre on Ferozepur Road and the old Falettis Hotel and the high-rise buildings wherefor construction of basement excavation work are in progress.

' Kamil Khan Mumtaz, a Member of the said Commission submitted note that completion of the task entrusted to the Commission could take several months and that suspending all construction activities of high-rise buildings in the city for such a long time not only will affect the livelihood of thousands of persons involved in the said activity but could also adversely affect the quality of construction especially where the activity was at critical stages such as excavated sites etc. It was, therefore, suggested that some relaxation in the case of excavated sites and the construction of three storeyed buildings be permitted to be continued upto the stage where a building does not fall within the ambit of a high-rise building subject to the following conditions:--- "(A) Owner shall provide:---

(1) Proof of ownership and rights to the property;

(2) No objection certificates from owners of properties abutting or directly across a public street;

(3) Approval of controlling authority;

(4) Undertaking that the work has been, and will be carried out in accordance with the design, specifications and instruction of the Architect and Engineer appointed for the project.

(B) Architect shall provide an undertaking that the design of the building and the work done is in conformity with the applicable laws and regulations;

(C) Engineer shall provide an undertaking that the design of the structure and the work done is in conformity with the applicable codes."

9. The Court having considered all the aspects of the matter and after having heard all those present before the Court on the date passed order in the following terms:---

(a) a list of illegally constructed buildings as supplied by the Zila Nazim of Lahore/Chairman of LDA be sent to the Chairman of the Commission of high-rise buildings set up by this Court for necessary action;

(b) the prohibition of construction of buildings in question imposed through our earlier order dated 11-5-2007 is lifted for the present cases where the sites have been excavated or are being excavated but contribution of this work shall, however, be subject to the report of the Commission and at the builders' own risk;

(c) the office is directed to entertain all applications submitted by the affected/aggrieved builders in terms of para 13 of the above-mentioned order dated 11-5-2007 and to list the same for hearing in accordance with law;

(d) the matter of granting permission to continue building activity up to three storey's as suggested by Kamil Khan Mumtaz will be considered on the next date of hearing."

' The case was ordered to be re-listed for 31-5-2007. On this date after hearing the learned counsel for the parties, the matter was ordered to be fixed on 7-6-2007 before the Full Bench.

' Certain orders in the light of the report of the Commission with respect of 4 buildings namely; al- Qadeer Heights, Tri-Con Tower, Garden Heights and Pace Tower as well as; orders and directions relating to some other buildings etc., were passed by this Court on 7-6-2007.

' On the date fixed i,e, 21-6-2007 in the light of the report of the Commission orders were passed by this Court relating to some other high-rise buildings and some of the other mentioned buildings on 28-6-2007 similarly; on receipt of report of the Commission, orders were passed by this Court on 5- 7-2007 in respect of the high-rise buildings not related to the high-rise building in question i,e, 'Big City Plaza'. The order passed by this Court on 9-7-2007 and 26-7-2007 do not relate to the case in hand.

10. Vide order dated 30-7-2007 in respect of the 'Big City Plaza' notice was directed to be issued by this Court. Some of the paragraphs of the order passed by this Court on 30-7-2007 being relevant in the matter are reproduced herein below:--- "(16) The above-noticed report of the District Nazim Lahore regarding at least Fifteen Hundred High-Rise Buildings having built in the city of Lahore without seeking permission from the competent authority and in absolute violation of laws and from various reports of the Commission about other such buildings, paint a horrifying picture before us and the only question which come to our mind are:--

(a) Where is the law?

(b) Where are the regulatory and law-enforcing agencies? And

(c) Where is the Government.

(17) The painful answer which surfaces, tells us of a culture of lawlessness where the ones who can manage it are displaying a brazen, determined and a contemptuous disregard for all laws and a callous lack of concern for the lives and the properties of the public. Steps are, therefore, required to curb such tendencies with an iron hand if we have to survive as a civil society.

(18) Mr. Shahzad Shaukat, the learned Advocate Supreme Court for the builder placed reliance on Regulation 10 of the Buildings Regulations framed by the LDA and vehemently argued that when a plan was submitted with the LDA seeking its approval for the construction of a project and if such an approval was neither granted nor refused within sixty days then the builder was entitled to presume grant of such an approval and was thereafter legally entitled to construct such a project.

This submission, however, loses sight of the fact that even if the said Regulation could be read for the benefit of the builder, the said benefit was available only to a structure raised in accordance with law and not to something done in violation thereof. We may add here that we have not been able to appreciate the desirability or the reasonableness of the said Regulation 10 because it was not physically and humanly possible for the LDA or for any other authority to undertake the entire exercise leading to the sanctioning of a plan of such like huge structure within two months especially when tens and hundreds of such buildings are being constructed in the city. The DG LDA, present in Court, admitted that complying with the requirement of the said Regulation 10 within the said time frame was an impossibility and the same was being used only as dishonest instrument to commit illegalities and was a big source of corruption. He undertook to apprise the authority of the said situation and for taking remedial measures at least in accordance with high-rise buildings.

(19) As has been mentioned above, we have, at least in the case of Salar Centre, wherein two floors had been unauthorizedly added to the approved structure, withheld demolition of the said two floors by imposing a penalty of Rs,50,000,000 (rupees fifty million) on the builder subject, of course, to all other conditions of stability of the structure etc. Being satisfied. For reasons best known to the owner of Masood Hospital, no request for such a treatment had been made for the building in question. In the circumstances, we are left with no option but to direct that the said illegally constructed structure, the stability and safety of which is also not beyond serious doubts, be demolished by the LDA at the risk and the costs of the owner.

(20) The DG LDA, present in Court, submits that steps have been initiated to make arrangements of demolition of such-like structures and prays for time to do the needful. He is allowed three months time for the purpose but in the meantime the said structure shall be sealed for safety reasons. It is further ordered that before actual demolition of the building the DG shall inform this Court after requisite arrangements for the demolition had been finalized."

11. The matter as directed was taken up on 2-8-2007 on which date the owner namely; Sh.

Muhammad Aslam was present with his son namely; Sh. Muhammad Imran who is also the Director of the Company, and sought for short adjournment on the ground that their learned counsel was not available. The request was entertained and the matter was ordered to be re-listed on 6-8-2007 with the direction that the owner shall bring all the record relating to the sanctioning of Plan for Building in question namely; 'Big City Plaza' (Plot No, 3-Block-E-III, Gulberg-III, Lahore). On this date all concerned including Mr. Hamid Khan, Sr. Advocate Supreme Court were heard by this Court. Sh. Muhammad. Aslam and Sh. Muhammad Imran (owner) were also present and the following order was passed by this Court:--- "(16) For detailed reasons to be given later, in view of the construction of the eleventh floor being in complete violation of law, the learned Senior Advocate Supreme Court for the builder on instructions received from the builder, present in Court, submits that the owner shall himself remove the said floor. He is allowed three months' time for the purpose."

' Impugned through the instant Civil Review Petition, the main case along with other matters was re-listed on 6-8-2007. It is worthwhile to note that subsequent to the passing of short order by this Court on 6-7-2007 reproduced hereinabove. C.M.A.No,2962-L of 2007 was filed behalf of the intervener.

' The instant Review Petition and the C.M.A. Along with other connected matters were taken up on 21-5-2008 Mr. Abdul Hafeez Pirzada, Senior Advocate Supreme Court pointed out to this Court that he has moved an application seeking clarification as to whether the case of the applicant was compoundable or not, in which context it was observed by the Court that notices have already been given to the LDA and an appropriate order will be passed. Also attending to other aspects of these matters, further hearing was adjourned to 27-5-2008. As regards C.M.A. No,2962-L of 2007 the learned counsel for the petitioner contended that only one storey of the Building was found to have been constructed without approval whereas; the Commission has made general observation of illegal construction, therefore, an appropriate order may be passed to remove the ambiguity. In view of the other submission, it was observed by the Court that without commenting upon the matter in either way, directed the learned Legal Advisor, LDA to submit written reply to the application before the next date and explain the correct factual position. Accordingly, further hearing in this matter was adjourned to 27-5-2008.

' The instant Review Petition and the C.M.A.No,2962-L of 2007 along with other matters were re- listed on 29-7-2008 but were adjourned in view of the request of learned Advocate-General to assist this Court and all these matters were again adjourned to 4-8-2008 to be re-listed after summer vacations which were fixed on 28-8-2008 and 4-9-2008 and on the latter date ordered to be fixed with the main case. Some C.M.As. Were heard on 15-9-2008 and the office was directed that these matters of high-rise buildings be fixed at the Principal seat of this Court at Islamabad by soliciting necessary orders from the honourable Chief Justice of Pakistan.

' Out of a number of C.M.As., some were taken up and heard on 29-9-2008 and for further hearing, these matters were adjourned to 7-10-2008 on which date arguments of the learned counsel in C.M.A. No,1055-L of 2008 could not conclude and these matters were adjourned to date in office; but could not be taken up on 20-10-2008. A few C.M.As. Were heard on 17-11-2008. On various dates thereafter these matters were heard in relation to the other Buildings by the Court. The instant Review Petition and the Civil Miscellaneous Application No,2962-L of 2007 were heard on 20-1-2010.

12. Mr. Hamid Khan, the learned Senior Advocate Supreme Court for the petitioner at the very out set pointed out that no proceeding in any Court is pending except the instant Review Petition and the Civil Miscellaneous Application filed by the intervener. However, the learned counsel submitted that petition seeking for stay of the demolition of the objected storeys of the Building was filed in the Lahore High Court, Lahore in which stay was granted which eventually was vacated by the learned Single Bench on 11-12-2009 against which order I.C.A. Was filed but on account of pendency of the Review Petition before this Court, the same was disposed of accordingly. Copies of these documents have not been filed.

' The learned counsel further pointed out that the detailed reasons for the short order dated 6-8- 2007 have not been given. Hence; he felt somewhat handicapped in making submissions with regard to the reasons which found favour with the worthy Bench in passing of the short order.

According to the learned counsel the revised plan in respect of the objected storeyes of the Building was submitted to the LDA much prior to the order in question, in respect whereof the necessary formalities were completed. He explained that pursuant to the meeting held in such behalf, the petitioner was advised to submit the revised plan which eventfully was sent to the Consultant Engineer namely; Zia-ud-Mian inasmuch as; the required fee was also deposited through challan, yet notice for removal of the 11th Floor of the Building in the light of the report of the Commission was issued to the petitioner. The learned counsel further submitted that construction of the 11th floor of the plaza is a compoundable offence and the petitioner remained throughout ready and willing to pay the penalty and such portion of the Building being integral part of the main Building could not be safely removed without affecting the structural stability of the main Building, lawfully constructed as per the given specifications of the approved plan but the LDA in complete violation of the law without providing reasonable opportunity to the petitioner to remove 11th Floor of the Building and without acquiring the services of the qualified experts, applying requisite machinery and tools of high tech: value, had commenced with the demolition process of the objected floors of the Building exposing the main Building and its structure to serious risk and in order to avoid and avert damage to the main Building, it was offered that owners shall be themselves on their own get the objected storeyes of the Building removed to minimize the financial loss and damage to the main Building and in order to go ahead with the undertaking and commitment made before the Court; offers were even invited through Press from the Contractors etc., having full expertise, machinery tools, equipments etc., which could not be finalized, as it was opined that the objected Floor of the Building without causing damage to the main Building cannot be removed being integral part of the main Building but even prior to this; the process of demolition of the Building was commenced by the LDA. According to the learned counsel, all the defects pointed out by the Commission and the notice issued by the LDA were removed and remedied appropriately except the 11th Floor of the Building in question completed without the approved plan for which the petitioner has already submitted the Revised Plan and was ready to pay the penalty. As regards the construction of the 11th Floor, he added that it is a compoundable as per LDA Building Regulations with the only difference that the rates/ percentage of the penalty for the composition of the offence has been increased. The basement and the 10th storey according to the learned counsel were constructed in accordance with the approved Building plan and the entire construction of the structure was completed in the year, 2006. Lastly the learned counsel pointed out that 3rd party's interest in various Floors of the Building including 11th Floor prior to the process of demolition was created for valuable consideration who have also acquired title thereto.

13. Mian Gul Hassan Aurangzaib, the learned Advocate Supreme Court for the applicant in C.M.A.No,2962-L of 2007 argued that in view of the interest of the intervener/applicant created in the 11th Floor of Building in question to the extent of 16 units out of 53 units in all in his favour whereas; the 10th Floor of the Building in its entirety is owned by the said applicant, therefore, the undertaking readily given to the Court by the Builder was unauthorized and illegal, pursuant to which the process of demolition of 11th Floor could not have been lawfully commenced. The learned counsel as regards the status of the petitioner submitted that Waft Associates (Pvt.) Ltd. Is a Company incorporated under Companies Ordinance, 1984 in which the intervener was having 28.5 shares; which commenced with the construction of the plaza. Firstly, the petitioner sold his shares and in return, the above stated units in the Building in question were given to the applicant. The learned counsel further pointed out that the Building in question including 11th Floor was completed in November, 2006 and it was within the knowledge of the petitioner that 1 1 th Floor of the Building is to be constructed and the plan for construction of ten storeyes was only approved. He frankly stated that it was obligatory on the part of the petitioner i,e, Waft Associates (Pvt.) Limited to have first got the plan approved for 11th Floor and Top Floor etc. Referring to the background of the dispute between the shareholders; the learned counsel stated that for winding-up of the Company, Petition was filed before the learned Judge under the Companies Ordinance and during the pendency of the proceedings, a compromise was arrived at between the parties on express terms whereby petitioner who was holding minor shares sold the same in favour of the major shareholders of the said Company and in consideration thereof 16 units in the 11th Floor and entire 10th Floor fell to the ownership of the applicant. He further submitted that such undertaking on behalf of the owner could not have been given in the Court for removal of the 11th Floor without impleading and notice to the applicant whose interest was likely to be affected on demolition of the objected Floor. According to the learned counsel, the settlement arrived at between the parties in winding-up proceedings was in the nature of an agreement as on completion of 11th Floor, the intervener will become full owner of 16 units in the objected Floor of the owner and the 10th Floor.

' Mr. Abdul Hafeez Pirzada the learned Senior Advocate Supreme Court for the petitioner having been busy before the other Bench, at this stage of the time, joined the hearing. The learned counsel very briefly submitted that detailed reasons for short order had not come and the Court had ordered the demolition of the 11th Floor which cannot assume the functions and the jurisdiction of the local bodies or Executive Authority. As regards the interest of the petitioner to be impleaded in the Review Petition stated that the petitioner approached to the learned High Court for winding-up of the Company during the course whereof, a compromise was arrived at between the parties on 17-5-2006 as a result thereof, 16 units in the 11th Floor and the 10th Floor as a whole of the Plaza was given to the applicant. It was strenuously argued that doctrine of proportionality of the action by striking a balance has to be drawn while assuming jurisdiction under Article 184(3) of the Constitution and that nobody including the Builders could have made any undertaking on behalf of the intervener to demolish 11th Floor of the Plaza involving his legitimate interests, not a party before the Court and it cannot be conceived that 10th Floor of the Building solely owned by the petitioner will not be affected adversely as a result of the 11th Floor being in the process of demolition, carried out roughly. In the last, submission was made that after full hearing, he may be able to persuade that the issue can be resolved through a lesser action. The learned counsel also made reference to Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423 and Muni Suvrat Swami Jain S.M.P. Sangh v. Arun Nathuram Gaikwad and others AIR 2007 SC 38.

14. Khawaja Haris Ahmed, the learned Advocate Supreme Court entered appearance for the LDA.

According to him the short order passed by this Court on 6-8-2007 is fully effective and enforceable with regard to the demolition of the 11th Floor of the Building in question in view of the categorical offer made by the learned Senior Advocate Supreme Court for the petitioner-Company enabling it to remove the illegal storey of the Building for which 3 months time period was allowed and such offer was categorically made by the learned counsel on instructions received from the Builder present in Court with the owner. Further, the learned counsel submitted that non-supply of detailed reasons for the short order would not in the circumstances of the case and the material available on record in the shape of documents and the report of the Commission, have any adverse effect on the execution of the order passed by this Court. He further while touching to the merits of the case submitted that the covered area was extended and the height of the Building was raised up to 154 feet as against the permissible height of 130 feet as per sanctioned plan, inasmuch as; the space violations and substantial deviations from the approved plan were made.

All such deviations were not compoundable as well as; the discretion still lies with LDA to permit all or a few violations/offences to be so dealt with subject to payment of applicable penalties, falling within this category but as regards the instant case not only that the 11th and the top Floors were unauthorizedly and illegally constructed by the petitioner-Company through the Builders rather; it even failed to bring on record any authentic document to show that the existing Building remains capable to sustain and bear the load of the 11th and top Floor including soil, subsoil and foundation load bearing capacity besides the stability of the Building structure etc. Thus, keeping all these factors and the Commission report in view, the learned counsel for the petitioner offered to demolish the illegal construction by themselves for which a very reasonable time was allowed to them by the Court. As regards the demolition of the objected Floor of the Building by the LDA after expiry of the time allowed by the Court, necessary publication of notices were made in various Newspapers and the proposed demolition process was also highlighted repeatedly through the electronic media. The learned counsel made categoric statement that 23% of the 11th Floor has already been demolished without causing any damage to the structural stability of the main Building. The objected Floor was not the integral part of the Plaza technically and in such process due care and caution has been taken by using expertise involving technical persons, using necessary equipments, machines and tools besides a manual removal to a permissible extent under strict supervision of the technical staff.

' The factual controversy on the point was seriously controverted. As regards the status of the intervener., learned counsel submitted that he was one of the Directors of the petitioner-Company having minor shares, admittedly had the knowledge that I 1 th Floor of the Plaza was unauthorizedly and illegally constructed in which he as per settlement between the parties acquired title over 16 units out of 53 units and thereby exposed himself to all risks involved as a consequence of illegal construction of the said Floor and the top floor. The intervener undisputedly was aware of the cognizance taken by this Court in respect of the high-rise buildings pending with the Court commenced during hearing of C.P.No,553-L of 2006 in the case of Farooq Hamid and others v. LDA and others, instituted on 10-4-2006. In view of the stated settlement arrived at between the parties, the Directors and the shareholders of petitioner-Company during the pendency of the winding-up proceedings, finalized on 17-5-2006 but the intervener did never come before the Court for defending his claimed interests in respect of portion of 11th Floor of the Plaza. It was only after the Review Petition was filed against the short order, C.M.A. No,2662-L of 2007 was tiled with the prayer that the intervener may be impleaded as party in the Review Petition. Moreover; the claim of the applicant has been based on settlement/agreement arrived at between the shareholders of the Company enforcement whereof cannot be claimed against the LDA. The learned Advocate Supreme Court further contended that no case for Review of the order has been made out, as no patent error at the fact of the order could be shown to justify Review of the order, not suffering from any impropriety or illegality.

15. The contentions put forth on behalf of the parties have been considered in the light of the short order dated 6-8-2007 and the record of the case which eventually resulted in passing of the said order by this Court including documents produced by the learned Advocate Supreme Court during the course of arguments, the Lahore Development Authority Act, 1975 and the Lahore Development Authority Buildings Regulations.

' It is pertinent to note that Sh. Muhammad Aslam and his son Sh. Muhammad Imran one of the Directors of the petitioner-Co. Namely; Wafi Associates (Pvt.) Ltd: were present before the Court on 2-8-2007 (without disclosing about the settlement between the shareholders) when the instant matter along with the other cases relating to the high-rise buildings were taken up by the Court and request was made by them that a short adjournment may be granted, accordingly the same along with the other cases of high-rise buildings were ordered to be re - listed on 6-8-2007. The owner of the Big City Plaza was directed to bring all the record relating to the sanctioning of the plans for the Building in question. On 6-8-2007 the cases were taken up by the Court on which date Wafi Associate (Pvt.) Limited i,e, petitioner in C.R.P.No,79-L of 2007 were represented by their learned counsel. After hearing the learned counsel and having gone through the report of the Commission; the short order reproduced in paragraph No,1 of this judgment was passed as the learned Senior Advocate Supreme Court for the petitioner on instructions received from Builder present in the Court submitted that the owner shall himself remove the floor in question accordingly, the owner was allowed, 3 months' time for the purpose and further it was ordered that after removal of the 11th Floor of the 'Big City Plaza' upward steps shall then be taken to have the structure stability examined and also to examine any other violation of the law committed by the owner.

' The short order passed in the open Court was signed by the honourable Judges which order as it has been held in the case of the State v. Asif Adil 1997 SCM R 209 shall be fully operative in law and in consequence thereof, the case in respect of which the same has been passed shall stand disposed of in law.

16. Adverting to the merits of the case, this Court while seized of the matter in the case of Farooq Hamid and others in C.P.No,553-L of 2006 during the hearing of the Petition on 19-7-2006 noticed that the last two decades have witnessed a new culture in the city of Lahore i,e, construction of high-rise buildings comprising of shopping complexes, residential apartments and even cinema houses etc. And the main Boulevard of Gulberg for instance which was once a purely residential area appears to have become a focus of multi-storeyed commercial buildings. It was further observed by this Court that presently on each residential plot, multi-storeyed buildings have been built which are used by hundreds of persons every day i,e, the ones living there and the ones visiting the shopping arcades etc. Provided therein. The observations made by this Court in such a context have been reproduced in paragraph No,5 (supra), which eventually in the light of the documents and the report of the Commission resulted into the passing of the order on 6-8-2007 in view of the categoric statement made at bar by the learned counsel for the petitioner. On 11-5- 2007 a comprehensive order was passed by this Court in paragraph No,7 supra and it was observed that while hearing the main petition in the month of July, 2006 the honourable Judges were horrified to notice by observing that the LDA and the other Governmental Agencies had allowed the construction of high-rise buildings in the City of Lahore without following the laws regulating the subject as a result whereof these multi-storeyed buildings had become grave threat to the lives and the properties not only of the people living, occupying or using the said Buildings but also of the multitude i,e, the neighbours, the visitors and even the ones passing by. The height of callousness and disregard for human lives and properties shown by them and evident inter alia from the fact that not even a single structure engineer was available with the LDA who could have checked, supervised or ensured the structural stability of these structures. Having considered and attended to all the aspects relating to the high-rise buildings and for the reasons mentioned in the order of even date passed by this Court after hearing the parties and the learned counsel present before the Court and with the consent of all the parties present, a Commission was appointed by the Court to be manned by its Chairman and Convener Mr. Justice (R.) Riaz Kiyani, a nominee of the Vice-Chancellor of the University of Engineering and Technology, Lahore from the field of Structure Engineering and Mr. Kamil Khan Mumtaz, the Town Planner and Engineer from the private sector.

17. The Commission visited the site on 8-6-2007. Sh. Muhammad Imran and his father Sh.

Muhammad Aslam the owners of the Project along with Architect Mr. Amjad Saleem Tahir and Structural Engineer Mr. Amin Tariq were present at the site. It was noted by the Commission in its, report that the initial building plan was submitted on 9-12-2000 for building a Plaza, comprising of three basements to be used for parking along with lower ground floor, ground floor plus 9 Floors.

The building plan upto plinth level was released on 9-12-2000 whereas; second building plan from first floor upto 10th floor was released on 12-5-2005. The Builders being not satisfied with the original plan submitted a revised plan on 7-4-2007. The revised plan deviated in many respects from the original plan. Firstly the area covered by basement was reduced and thereafter; the area to be occupied by 11th Floor was increased. In view of the data/information supplied to the Commission by the Town Planning Wing, LDA comprising of the original plan and the revised plan; the Commission found that 11th Floor was built totally unauthorizedly and at the time of the visit of the Commission to the said site found that the finishing touches were being given. It was further noted by the Commission that the owner took the LDA to litigation, firstly before the Civil Judge and thereafter; two Writ Petitions Nos.21593 of 2000 and 20986 of 2002 were brought before the Lahore High Court, Lahore and finally in the writ petition filed by the Builders, decision was taken that the owner shall participate in the Committee headed by the Director-General, LDA and after submission of revised plan the construction would commence. The Commission categorically noted that the 11th Floor and the top Floor were built before submission of revised plan on 7-4-2007 and such fact was even admitted by Sh.Muhanimad Aslam father of Sh. Muhammad Imran that the extra Floor was constructed without permission and approval of the revised plan. Remaining part of the report of the Commission is as follows:-- "It would be worthwhile to quote the law when the construction is totally unlawful and unauthorized.

Regulation 8(iv) of the LDA Building (Regulations 2006) states as under:-- "In case of multistorey buildings and buildings of public assembly, the execution/construction work shall not commence before the approval of the building plan and approval of the structural designs/drawings duly prepared and signed by consulting Structure Engineer registered with PEC.

Approval of building plan shall be issued after scrutiny/vetting by the Structure Engineer working for LDA.

' As admitted by the owner, the building was completed in November, 2006 and the revised plans were submitted on 7-4-2007 much after the completion of the building. The report of our Structure Engineer, member of the Commission is attached as Annexure-B who was taken a very strict note about the aspect of completing the work particularly onwards to the ground floor and top floor before submission of the revised plan and structural designs. The vetting certificate dated 4-6- 2007 by Mr. Zia-ud-Din Mian also would be of no avail to the builder. Member of the Commission in his observations noted as under:-- ' Apparently serious violations have been committed by the constructor/owner. The plans, which were released on 12-5-2005 were never executed instead construction has been carried out as per self-proposed plans which were submitted post-construction to LDA on 7-4-2007. Thus the construction of the building beyond ground floor has been carried out without the prior approval of LDA. The LDA served a notice upon the builder on 11-6-2007 copy of which is attached as Annexure- C. This notice outlines 16 violations made by the Builder. The notice has been received by the Advocates of the Builder which is marked as Annexure-D. In his reply to the notice, it has been rather inadvertently admitted in para 3 of the first page that all building requirements were submitted with the revised plan for its approval. The documents mentioned at the end of this paragraph from "A" to "F" speaks for itself that the constructions were raised after the submission of revised plan. In para 4, the learned lawyer of the Builder after seeking instructions has stated that he is prepared to deposit. All composition chares for any variation (compoundable). He has further admitted in reply to violation No,1 pointed out by the LDA that 11th and top floor have been constructed with the implied consent of the officers of LDA as this variation is permissible under regulation and now revised plan has been submitted. Similar reply has been given to violation No,2.

It has further been admitted while dealing with violation No,10 that fire fighting arrangements will be complied with and that violation No,11 has also been admitted but to the extent that temporary stores are made which will be removed after completion.

' As far as parking is concerned on our visit to the site, we found a huge area, which remains unused and is part of the Plaza. Even if the construction though illegal upto 7 Floors, the parking space is sufficient to accommodate the number of cars which can visit the plaza at one time.

' Recommendations: ' The constructions particularly of 1 lth storey and floor which has been raised prior to submission of revised plan cannot by any stretch of imagination be compoundable. It has to be demolished.

Same treatment has to be meted out to shops and stores built unauthroisiedly as pointed out in violation No,11 in Annexure "C". As regards, construction from plinth level upwards, fine permissible under the rules for composition has to be levied. The report is submitted for kind perusal and further orders."

18. Mr. Zia-ud-Din Mian, Consulting Engineer, Professor and Head Structure Engg. Division (R), Civil Engineering Department, University of Engineering and Technology, Lahore with reference to letter No,1932 dated 25-6-2007 addressed to him by the Director Architect, LDA, Lahore on the subject, of scrutiny/vetting of the Structural Design of the Big City Commercial Building Existing at Plot No,3-E/II Gulberg, Lahore, informed vide his letter dated 28-6-2007 that the approved drawings were not submitted to him along with the structural drawings, therefore, he could neither come to know nor was purview to scrutinize as to, for how many storeyes the Building had actually been approved and the documents were simply entrusted only to scrutinize and vetting of the structural design and drawings, passed on to him by the LDA. It was further clarified by Mr. Zia-ud-Din Mian in his above quoted letter that the structural design of the said Building was carried out by Amin Tariq Associates, referred to him for vetting by the Director Town Planning-I Lahore Development vide letter No,1634 dated 2-6-2007. As regards the confusion in the number of storeys for which the Building was designed, he stated that it arose due to different nomenclature/serial number of Floors in submission drawings viz-a-viz the structural working drawings.. Three basements and the lower ground floor have been titled identically in the submission drawings and the structural drawings. However, the first ground floor of the structural drawings is ground floor in the submission drawings, second ground floor of the former is the first floor of the latter and so on, depicted by him in the table as prepared by the Consulting Engineer in his said letter reproduced hereinbelow:-- Drawing title in structural drawing:Drawing title in submission drawing

1. 3rd basement 3rd basement 2.2nd basement 2nd basement 3.1st basement 1st basement 4.Lower ground floor Lower ground floor 5.1st ground floor Ground floor 6.2nd ground floor 1st Floor 7.1st mezzanine floor 2nd Floor 8.2nd mezzanine floor 3rd Floor 9.1st floor 4th Floor 10.2nd Floor 5th Floor 11.3rd Floor 6th Floor 12.4th Floor 7th Floor 13.5th Floor 8th Floor 14.6th Floor 9th Floor 15.7th Floor 10th Floor 16.8th Floor 11th Floor

19. Vide letter dated 25-6-2007 sent to Mian Zia-ud-Din by the Director (Architecture) he was requested for the scrutiny/vetting of the said documents after inspection of the Building if found in order but was further required to be certify that the existing Building consisting of 10-approved floors whether can with stand the load of the 11th and 12th floors constructed without approval of the Building Plan from LDA. This communication was answered by the Consultant Engineer in the terms above-mentioned.

20. Pursuant to the report of the Commission Notice No,1723 dated 11-6-2007 issued by the Director, Town Planning-I, LDA, Lahore was served on Mr. Imran Aslam Sh., of Messrs Wafi Associates of the 'Big City Plaza' intimating that keeping in view the provisions of the approved plan dated 9-12-2000 in comparison with the revised plan submitted by him on 7-4-2007 and after scrutiny of the revised plan by the Directorate of Architecture/LDA; noted the following deficiencies in the plans and the Building constructed at the said site as under:-- "(i) The 11th and Top floor are constructed without seeking approval of the building plan.

(ii) The Roof plan is not as per site and the roof of Atrium is beyond the prescribed height of 130 feet, which requires removal.

(iii) The Floor Area Ratio is in excess of the permissible FAR of 1:7.

(iv) Space violations have been done by projecting the main building towards the building lines on 3 rd to top floor.

(v) Various shops at Lower Ground Floor, Ground Floor and upper Floors are less than 100 Sft. Area.

Similarly, width of some shops is less than 8 feet. Shops size should not be less than 100 Sft. With at least 8 feet width.

(vi) Main Entrance for building is allowed from the Stadium road, accordingly, entry 'and exit points are not shown on the revised plan.

(vii) In approved plan, from 8 to 10 the floor was Hotels, whereas in the revised plan 8th to 11th floor there are offices. Affidavit in this regard is required.

(viii) Revised Parking agreement and affidavit are required to be executed with TEPA/LDA.

(ix) Ramp for disabled and toilets are not provided in the revised plan.

(x) Fire fighting arrangements are missing in revised plan.

(xi) Shops and stores constructed under building lines are non-compoundable and require removal/permanent closure.

(xii) NOC from EPA, Lahore and fresh Structural Stability Certificate design calculations and vetting report from Structural Engineer are required to be provided afresh to ensure that the approved 10 floors can have the additional load of 11th and top floor.

(xiii) Penalty for excess coverage space violations and building projections etc. Is to be paid. In this regard your consent in writing is required. In case otherwise these all violations shall have to be demolished.

(xiv) Penalty for undertaking construction of 11th and top floor without seeking approval of building plan is to be paid.

(xv)The vetting report submitted by Engineer Mian Zia-ud-Din vide No,T.P.No,1354 dated 5-6-2007, is regarding the structure of a proposed building with two ground floors, two mezzanine floors etc. To be constructed on plot No,3-E-II, Gulberg-III, whereas in the instant case, the matter is regarding regularization of an existing building, as such the design/structural analysis, GeoInvestigation and vetting report are to be re-submitted accordingly.

(xvi) Before final approval of the revised plan you shall have to withdraw all the legal suits, notices, etc. Filed by you and pending against the LDA."

' Accordingly, the owner of the 'Big City Plaza' was called upon to meet with all the requirements within three days of notice. The notice was responded by the petitioners through their learned counsel vide reply dated nil (copy available on the paper-book) which indicates that the same was delivered by hand in the office of LDA on 14-6-2007.

21. Admittedly, the 11th Floor of the Building and the top Floor was constructed without approval of the revised plan and in absence of the certificate issued by the concerned expert to the effect that the existing Building structure was capable to sustain and bear the load of the 11th Floor and top Floor nor the requisite certificates about sub-soil and soil load bearing capacity including that of its foundation were obtained prior to the construction of the un-authorized and illegal storey of the Building and its top Floor involving great risk to lives and properties of the persons visiting the Plaza and to its users, occupants, nearby properties and to passers-by. Nothing as urged by the learned counsel for the petitioner in Review Petition has been brought on record through authentic documents duly certified by the LDA that the pointed out defects and violations in final notice issued by the LDA and in the report of the Commission referred to above were removed and remedied appropriately and if so, as to what extent except the construction of the 11th Floor and top Floor of the Building in question. Moreover, the learned counsel during the course of arguments could not cite any provision in the Lahore Development Authority Building Regulations or Lahore Development Authority Act that the compounding of the offence with regard to the un-authorized and illegal construction of the 11th Floor and top Floor of the Building will stand consequently regularized even in absence of the requisite certifications about the structural stability of the existing Building, load bearing capacity etc., mentioned-above. It goes without saying, as also admittedly that the owner of the project wanted to remove the un-authorized and illegally built 11th Floor and top Floor of the Building on his own within the period of three months from the date of the order passed by this Court on 6-8-2007 but during such period lie failed to do the needful. In this context, it is interesting to note that it was forcefully argued that the 11th Floor and top Floor of the Plaza has been the integral part of the main Building but no authentic document has been brought on record in support of such plea and secondly, during the course of arguments, the learned Sr.

Advocate Supreme Court expressed about the willingness of the petitioner to remove the same on his own, as also it was submitted that instead of demolition carried out by the LDA which allegedly caused structural damage to the main Building, about which the learned counsel for the LDA submitted that process of demolition was commenced by involving requisite expertise, machinery, equipments etc., in addition to requisite manual exercise without causing any damage to the main building. Also nothing has been brought on record by any of the parties including the intervener to show that at all the stages of the construction of the existing building upto 10th Floor necessary inspections, supervision and certifications were made by the concerned Department of the LDA. In such behalf a letter to Mian Zia-ud-Din Consulting Engineer, Lahore was sent by the Director Architecture, LDA responded vide letter dated 28-6-2007 that the structural design of the 'Big City Plaza' was carried out by Amin Tariq Associates and that the approved plans were not submitted to him along with the structural design and drawings, therefore, he could neither come to know nor could examine or scrutinize as to how many storeys of the Building had been approved and it was simply entrusted to him for scrutinizing and vetting. The revised plan was finally. Submitted on 7-4- 2007 and after scrutinizing of the architectural plan, LDA noted the deficiencies in the plan and the existing Building detailed herein above. The Commission appointed by the Court visited the site before whom it was admitted by Sh. Muhammad Aslam father of Sh. Muhammad Imran that extra Floor was constructed without permission and approval of the revised plan. Serious defects were noted in the report of Commission. The building admittedly was completed except some finishing touches in November, 2006. It was also noted that the construction of the Building up to 11th Floor has been completed without meeting with the required inspections, certifications and the prior approval of the LDA. Relevant part of the report of the Commission has been reproduced herein above. 13 serious violations in the construction of the building have been noted about which notice was served by the LDA on 11-6-2007. In reply to the notice it was stated that the 11th Floor and the top Floor have been constructed with the implied consent of the officers of the LDA, therefore, revised plan was submitted. On failure on the part of the petitioner to remove the 11th Floor and the top Floor of the building within the given time, the task was again taken in hand by the LDA for demolition of the 11th Floor and the top Floor of the building. Learned counsel for the LDA undertook that demolition process would not be carried out till the decision of the Review Petition and eventually status quo order was also passed by this Court. As regards the creation of the 3rd party interest in the unauthorized and illegal Floor of the building is concerned, this per se would not result in regularizing the un-authorized and illegal constructions made by the owner and builder as they were fully aware and conscious of the consequences of their acts including the intervener holding minor shares in the Wafi Associates (Pvt.) Ltd. Mian Gul Hassan Aurangzaib, the learned Advocate Supreme Court frankly admitted that it was within the knowledge of the applicant that 11th Floor of the building is to be constructed and plan for construction of only ten storeys was approved and that it was obligatory on the part of Wafi Associates (Pvt.) Ltd. To have first got the plan approved for 11th and top Floor of the building, therefore, the subsequent developments statedly finalized between the applicant and the major shareholders of the Wafi Associates (Pvt.) in the winding-up proceeding of the Company inter se through the settlement dated 17-5-2006 whereby, 16 units in the 11th Floor and the 10th Floor as a whole to vest in applicant would not improve his case in respect or the demolition of the 11th and the top Floor. In the peculiar circumstances of the case detailed herein above, the learned counsel for the Builder on instructions present in the Court along with Sh. Muhammad Aslam and Sh. Muhammad Imran owner submitted that the owner shall himself remove the 11th Floor of the Building for which three months time was allowed pursuant to which even according to the learned counsel for the petitioner in the Review Petition, the owner had invited offers from the contractors having sufficient experience, expertise and capability in the removal of the structures through press notice clearly indicate that no error or any patent defect had occurred in the order dated 6-8-2007 passed by this Court sought for to be reviewed. The intervener had all knowledge of the proceedings and the order passed by this Court on 6-8-2007 but despite having statedly acquired ownership rights of 16 units in the 11th Floor and the 10th Floor as a whole, did not appear before this Court for defending his claimed interests, although the settlement was finalized between the shareholders on 17-5- 2006.

22. As evident from order sought for to be reviewed this Court did not assume functions and jurisdiction of the LDA rather; in the larger interest of the general public and the persons visiting the Plaza in question etc., and for the protection of the lives and properties of the persons occupying the building in question, cognizance in respect of high-rise Buildings was taken for reasons referred to herein fore. The order in question was passed in view of the categoric statement made by the learned counsel that owner shall himself cause the demolition of 11th Floor of the Plaza for which purpose reasonable time was allowed to the owner by the Court. The case of Multiline Associates v.

Ardeshir Cowasjee PLD 1995 SC 423 cited by the learned counsel for the intervener, to the extent of the judgment in case of Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512 was held to be not reflecting the correct legal position, overruled in the case of Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCM R 2883.

' In the case of Abdul Razak (supra) with reference to the Karachi Building Control Ordinance, 1979 and Karachi Building, and Town Planning Regulations, 1979, it was held as under:-- "In the present case, since the word "or" appears twice between clauses (a) and (b) and clauses

(b) and (c) of para No,2 of Regulation No,16 and as sub-clauses (i) to (vi) of sub-para (c) expressly provide the cases in which the offence cannot be compounded, we are inclined to hold that the word "or" used between clauses (b) and (c) of para 2 of Regulations No,16 is to be read as "or" and not as "and" as held by the High Court. However, it does not affect the result of the present case.

The above sub-clauses (i) to (vi) of clause (c) of para 2 of Regulation No,16 make it clear that in the cases covered by them, the offence cannot be compounded if the building works or part thereof violate any requirement of the provision of any sanctioned site development scheme, the building works obstruct any future road widening scheme of any concerned authority or the building works or part thereof exceed the maximum permissible height and number of the storeys allowed under the Regulations, the building works extended the property limits except otherwise provided in section No,34 or the Building works or part thereof violate or any other safety requirement or for any other violation of the master plan not falling in the above category. Similarly the word "may"used in Regulation No,25 is to be construed as "may" and not "must" as has been .Held by the High Court.

But it does not mean that discretion contained therein can be exercised by the Authority in derogation or violation of the provisions of the Ordinance and Regulations."

23. The provisions, as contained in the Lahore Development Authority Act, 1975 and the Lahore Development Authority Building Regulations on the subject are identical and para materia almost the same, as contained in the Karachi Buildings Control Ordinance, 1979 and Karachi Buildings and Town Planning Regulations, 1979.

24. The learned counsel for the petitioner has not been able to point out any error or infirmity apparent in the order dated 6-8-2007 nor any valid ground for review of the order is available to the petitioner in view of the peculiar circumstances of the case, discussed and referred to hereinabove, therefore, this Review Petition is dismissed. Consequently C.M.A. No, 2962-L of 2007 for impalement of the applicant for the reasons above-mentioned, is also dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.