JUDGMENT MUHAMMAD ATHAR SAEED, J.---The petitioners have preferred this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, against the alleged illegal construction over Plot No.13, Survey Nos.110 and 111, Deh Drigh Road, Shaheed-e-Millat Expressway, of Korangi Road, Karachi (hereinafter referred to as the subject plot) proposed to be raised by the respondent No.1/Ms City Developers. The respondent No.2 is Karachi Building Control Authority, the respondent No.3 is Nazim-e-Aala an authority under section 4 of the Sindh Building Control Authority, 1979, the respondent No.4 is City District Government while the respondent No.5 is Sheri- CBE (Citizens For a Better Environment).
2. We have heard Ms. Sana Minhas Advocate for the petitioners, Dr. Faroagh Naseem Advocate for the respondent No.1, Mr. Anwai Ali Shah Advocate for respondent No.2. KBCA and Mr. Abdul Rehman's Advocate for respondent No.5 Shehri-CBE. Besides oral arguments the learned counsel also filed synopsis of them arguments/objections, which we have examined but are not reproducing and will consider the same when we examine the petition for arriving at the decision.
3. She submitted that she is neighbour of respondent No. 1 who is in possession of the subject plot, which is about 40 feet away from her building, and by a plan duly approved by KBCA the respondent No.1 has been allowed to construct a building comprising of basement, ground, mezzanine floor and seventeen floors in which they plan to construct 271 flats and 37 shops and the height of this building according to the approved plan is 193 feet. Learned counsel submitted that she will first point out the violations committed by KBCA in approving the plan, then the violations made by respondent No. 1 against the provisions of the approved plan. She also showed her intention to satisfy this court that the amendments which have been made in Karachi Building and Town Planning Regulation, 2002 are not valid and legal because first of all they have not been published in the Gazette and secondly the authority who amended these regulations is not competent to make such amendments.
4. The violations made by the KBCA while approving the plan of the respondent No.1, as pointed out by the learned counsel, are as follows:-
(i) According to the provisions of Regulation 25-1.8 the maximum height which could have been allowed to the respondent cannot be for more than 85 feet as the plot where the construction is being Raised is served with a road of approximately 30 feet were, then there is a Nala of 18 feet and a raised space of 5 feet and then there is Shaheed-e-Millat Expresswa y which is 150 feet were. Learned counsel submitted that since this 30 feet road serves the building, therefore, it is to be considered for the purpose of computation of the height of the building in accordance with the provision of the above mentioned regulation.
(ii) Her second contention is that the maximum footprint, which have been provided under Regulation 25-3.1 is 65%. This contention is also without prejudice to her contention that building should be considered to a flat site and not a commercial site and therefore only 40% footprint should be allowed. She stated that in the approved plan 70% footprint has been allowed. She has conceded that according to the amended regulations 70% footprint is allowed but as she intends to challenge the legality of the amendments, she has pointed out that this is a violation.
(i.e) The third violation, pointed out by the learned counsel is in respect of the definition of Arcade given in the Regulation No. 2-12 of the Regulations 2002 read with Regulation No. 25-3.2. Her contention is that although the arcade is allowed lawfully but no construction is allowed over the arcade and KBCA has granted permission in the approved plan to construct flats over the said arcade.
(iv) Her fourth contention on the plan is that open spaces between two blocks which have been provided in Regulation No. 25-1.5.1 should be 50% of the height of the building which comes to almost 87 feet whereas in the existing approved plan these spaces range from 28 to 39 feet only.
(v) It is further contended that the Building Plan is in violation of. Regulation 25.3 as no compulsory open space on any side has been left. According to the learned counsel in the lay out plan COS shown have been eaten away in the approved plan available at page 27 of this file. It is contended that coverage of open space has been relaxed by the Presentation Committee for providing additional car parking. According to the learned counsel under the Sindh Building Control Ordinance, 1979 or Karachi Building Town Planning Regulations, Presentation Committee has no existence. It is even otherwise contended that the KBCA or any other authority has no jurisdiction to relax statutory requirement of compulsory open space.
(vi) It is next urged that no sewerage facility has been provided in the vicinity in terms of Regulation 12.5. It is contended that the petitioner strongly apprehend that waste and sewerage would be led into rain water drain which will again create chaos in rainy season. It is further contended that height of the building is in violation of Regulation 25.2.
(vii) Her seventh contention is that there is no lease document which may be produced and one of the precondition of the approval of the plan is that it should be on the land for which ownership documents have been produced.
(viii)She also contended that reference to the floor Area Ratio which is 1:2.75 for the purposes of flat site, and if the land is treated as commercial, FAR is 1:5.5.
5. She also referred to a report which was filed by the KBCA and is available on record and pointed out that the member of Committee Mr. Imran Ahmed Farooqui, who has been declared as Senior Architect, according to the learned counsel could not sit in the Committee because he had earlier advised the petitioner on the violation of this building.
6. On the legal point, the learned counsel submitted that amendments have not been published in the Official Gazette in accordance with section 19-A of the General Clauses Act. She further argued that the relevant amendments have been made in Ordinance, 2005 whereas section 19-A has been introduced in General Clauses Act on 18-9-2002. She has relied upon certain cases on the following four proposition Of law:
(1) Documents cannot be attributed to the legislation;
(2) Factual investigation is possible in petition;
(3) Maintainability of the petition;
(4) Shortage of amenities.
7. She has also pointed out that according to the layout plan they were supposed to leave 72.5 feet on the left side and 34.5 feet on the right side whereas they have drawn perpendicular from left hand side to right hand side which leaves space of 45 feet on the left side. She therefore prayed that the petition may be allowed, the approved plan cancelled and the building demolished.
8. Mr. Abdul Rehman's, learned counsel for respondent No. 5 has pointed out that first of all the notification for making amendments was not published in the Official Gazette and secondly it has been made by a Government Official who was serving as Caretaker Nazim and he pointed out that under the notification dated 10-4-2004 only the Nazim of CDGK has been nominated to act as Authority for District Karachi for the purposes of Sindh Building Control Ordinance, 1979. The learned counsel also argued that KBCA does not fall within the definition of Local Government or District Government and for this purpose he relied on various provisions of Sindh Local Government Ordinance. According to the learned counsel right to legislate is a sacrosanct right and cannot be exercised without jurisdiction. Learned counsel also submitted that section 22 of General Clauses Act provides for publication of draft of the proposed amendment and invitation of objection and this was not done. Arguing about the various amended regulations, learned counsel submitted that even without prejudice to his arguments that the amendments have been made without following the due process and by an authority not competent to do so, but even if, they were made after following the process and by Authority component to make it, there are certain amendments which have no nexus with the earlier Ordinance. Lastly the learned counsel pointed out the Regulation 3.3 under which permits and licenses are to be issued, for land development has not been implemented by the KBCA for any approved plan, as far as his knowledge goes, but according to the learned counsel it is compulsory to obtain such license and even in the case of present respondent this license has not been obtained.
9. Dr. Muhammad Farogh Nasim the learned counsel for the respondent No. 1 argued and on the basis of various case-la.w tried to rebut the contentions of the learned counsel for the petitioners.
Learned counsel has first taken the point of the Floor Area Ratio and has enumerated seven rules in respect of his contention that the FAR in the building being constructed by the respondent No.1 will be that of that FAR which is available to commercial building and not to flat site or residential building. In this connection he argued that the following rules are applicable to substantiate his arguments:---
(i) Rule of categorization by way of elimination;
(ii) analogous interpretation; (i.e) departmental practice;
(iv) higher or greater includes lesser;
(v) order of public functionaries;
(vi) right of legitimate expectancy;
(vii) fact that the respondent had paid commercial fee.
He elaborated on these principles at some length.
10. Learned counsel then presented a number of photographs and also relied on the provision of Regulation 25-3.2(3) to point out that the argument of the petitioners' counsel that flat cannot be constructed over the arcade is absurd and illogical and if it is accepted, it will be grave violation of the provisions of Building Control Regulations and also will be against the principle of harmonious interpretation. Learned counsel then took us through the definition of 'amenity', 'commercial ', ' residential ', 'industrial buildings and flat site' to point out that his building falls within the definition of 'commercial building' and not under the definition of any other category. He referred to Articles 67, 85 and 90 of KDA Order No.5 of 1957 regarding open space. Learned counsel referred to Regulation 25-1.5.1 to submit that this regulation applies only to the 'residential category' and not to 'commercial category'. In respect to the challenge of KBCA report, in which one Imran Farooqui was sitting as a member, learned counsel submitted that it is a settled principle of law that if there is only a bias in respect of one member of the committee then the report of the committee cannot be rejected only on the alleged bias of one person, in this connection he relied upon a case of Lahore High Court reported in 1998 CLC 641, however without prejudice to his above argument on the basis of the judgment, he stated that even if the report is ignored, he will not be prejudiced and secondly that the burden to prove that the bias of Imran Farooqui had caused a prejudice will be on the petitioner, who is making this allegation. Learned counsel also referred to the Zonning Regulation Chapter 25 to substantiate his contention that his site is commercial site and also relied on the documents of the petitioner to submit that they have already been allowed FAR 1-5.5.
11. Dr. M. Farogh Nasim further argued that the main serving road cannot be 30 feet were road, adjacent to the building because that is only a service road which does not even have a name. Ms. Sana has pointed out that there are two roads but conceded that there is no board or indicator from which the name can be identified. Dr. Farogh Nasim, in respect of his arguments, took us through the records of the case and specifically pointed out the layout plan on page 27 as far as realization of cost was concerned, he then took us through pages 507, 731, 773, 783 and 175 to point out that in all these pages the address of the petitioner has not been shown as 13 Shaheed-e-Millat Expresswa y and the address of the plaintiff shown as 5 Shaheede-Millat Expressway and therefore submitted that the main serving road is Shaheed-e-Millat. Expressway and not 30 feet were road, which according to the contention of the learned counsel for the petitioner is the main serving road. He further submitted that this road does not even have a name, the learned counsel for.Petitioner replies that the name of the road is Defence View Road but concedes that there is no sign board specifying this name. However at this stage both the learned counsel have conceded that if either of these roads are held by this court to be the main serving road then the computation of height as declared by both the learned counsel is correct.
12. Coming to the next point, whether the disputed plot can be considered a flat site or a commercial property, for computation of FAR, the learned counsel submitted that flat site is defined in Regulation 2.5.4 at page 18, as the site specified for the purpose of multi-families residence and is basically commercial-cumresidence and in accordance with the provisions of Regulation 25-9.6.7 it will be treated as a Commercial building under Regulation 5.3.1. At this stage Mr. Rehman's pointed out that Regulation 25-9.6.7 is only related to compulsory open.Space and foot print and not to FAR.
13. Learned Counsel for the petitioner had submitted a list of case-law, whereas learned counsel for KBCA had filed a detailed reply to the objection of the petitioner against repot of the KBCA, copies of which had been supplied, in court to the learned counsel for the petitioner and intervener. Dr. Farogh Nasim had also supplied certain documents, of which objections had been taken by the learned counsel for the petitioners.
14. Mr. Anwar Ali Shah Advocate for respondent No.2 KBCA adopted the arguments of respondent No.1 and also filed synopsis of his arguments which are reproduced as under:-- "It is respectfully submitted on behalf of the respondent No.2, KBCA as under:--
(1) That it is a case of approval of building plan in respect of proposed Multi Storeyed under construction Commercial Building in accordance with approved plan.
(2) That the land was initially owned by the Board of Revenue, Sindh, as residential-cum- commercial Plots Nos.12 and 13, Survey No.110 and 111, Deh Drigh Road Karachi, and form-II, was issued, in the name of Mr. Shahid Nabi.
(3) That as per layout plan the plot in question is facing towards 150 feet vide road now namely Shaheed-eMillat bypass Expresswa y, and on its southern side a road is also shown in the layout plan, which is existing 40 feet were.
(4) That both the plots were amalgamated and revised layout plan was approved by the MPGO, CDGK, as final Plot No.13, Survey. No.110 and 111, Deh Drigh Road Karachi, vide letter No.URP-30- 63/MPG0/2006/UDI126/L dated 21-3-2006.
(5) That the owner submitted proposed plan for construction along with all relevant documents, accompanied with forwarding letter dated 24-4-2006 from the District Officer (Rev), CDGK, as required under the provisions of Regulation 3-2.2 of the KBTPR 2002, which reads as under:-- 3-2.2. Submission of plans for approval. The owner shall submit to the Authority: 3-2.2.1. Two sets of all documents relating to the plot together with a letter from the concerned authority confirming the title/land use physically fresh demarcated/ dimensions of the plot along with the existence of any road widening/ cut line reservation.
(6) That as per procedure the case was forwarded to the Town Planning Section, KBCA for NOC on Town Planning point of view, which was accorded after detailed study of the plan, vide No.Deh/P- I/2006/144 dated 31-5-2006.
(7) That on the basis of TP, NOC, Architectural approval was granted vide letter dated 10-6-2006.
(8) That on the basis of TP NOC, Architectural approval, the case was processed for structural clearance, and after completion of all formalities as required for the proposed building, the Structure Section KBCA accorded Structural NOC dated 5-10-2006.
(9) That on the basis of above mentioned NOCs and the relevant documents submitted with the plan and clearance of the title etc. Final approval was granted for construction of Lower Ground (Parking) + Ground Floor with 40% Loft (Shops in front and side and parking on rest of the area) + 17 Upper Floors (1st to 4th floors parking, 2% amenities on part portion of 5th Floor and apartments on remaining 5th Floor to 17th floor) vide letter dated 18-10-2006.
(10) That the approval has been granted with road cutting of the plot in question as marked on the site plan, in addition to it, an extra Setback of 11 feet, has been approved and maintained at site, whereafter 08 feet Arcade has also been maintained towards both the roads i.e. 150 feet vide road and 40 feet vide road.
(11) That the COS has also been approved and maintained more than that as required under the Regulation No.25-3 of the KBTPR 2002, as it was not in conflict with the regulations 25-9 of the KBTPR 2002, that is applicable only for "OLD CITY AREAS" as captioned.
(12) That footprint has also been approved and maintained as per regulation 25-3 of the KBTPR 2002 and mentioned on the approved layout plan by the MPGO, CDGK.
(13) That the plot in question admeasuring 9680.00, square yards having commercial category situated on 150.00 feet were road Korangi Expresswa y.
(14) That the requirements of, the KBTPR 2002 chapter 25-3 at the time of approval of plot in question are as under: 25-3 COMMERCIAL 25-3.1. Building Bulk standards: All commercial plots shall observe the following standards, except where any of these standards are in conflict with clause 25-9, in which case clause 25-9 shall prevail.{{TABLE}}
(1) (2) (3) (4)
Plot size (Sq. Yds.) Footprint FAR Minimum Arcade Over 2000 Square Yards Ground Floor 70% Upper Floors 65% 1:5.5 8 Ft.
(2.5m)
(5) (6) (7) (8)
Minimum COS sides upto 30 Ft. Height Minimum COS sides above 30. Ft. Height Minimum COS rear upto 30 Ft height Minimum COS rear above 30 Ft. Height 10 Ft, (3m) 10% of building height above ground floor with a minimum of 10 Ft. (3m) 10 Ft.
(3m) 10% of building height above ground floor with a minimum of 10 Ft.
25-3.2. Other Conditions
(1) For-plots-abutting-public street at the rear, rear COS above 30 Ft. (9m) shall be only minimum as specified for Plot size.
(2) Plots where the allotment conditions or previous rules permit for higher FAR than the FAR noted in the above chart (25-3.1), the allotment conditions or previous regulations which provide for higher FAR shall be adopted.
(3) In case of corner plot, COS on sides abutting the lane or road shall be condoned and arcade will be provided.
(4) Arcade on front/sides not required if building lines setback 8.0 Ft. Or more from the property line.
(5) Wherever minimum COS on sides and rear is specified in relation to height of building, the COS shall be equal to 10% of building height above Ground Floor but subject to maximum of 15% of plot width depth on each side/rear respectively but with minimum as prescribed.
(15) That the regulation 25-9.6.7 reads as under:-- 25-9.6.7 For all commercial/ residential-cum-commercial plots facing more than 10m road/street width the minimum COS and foot print as prescribed in Clause 25-3 shall be applied.
(16) That in the present case as per available record, the details are as under:--{{TABLE}}
(1) (2) (3) (4)
Plot size (Sq. Yds.) Footprint FAR Minimum Arcade 9680 Sq. Ground 1:5.5 8.0 Ft.
Yds. Floor required (70% 60984 allowable 479160 approved Sq. Ft.
Approved 479128 60884.96 upper floors allowable 56628.0 approved 37690.75 Sq. Ft. (5) (6) (7) (8)
Minimum COS sides upto 30 Ft. Height Minimum COS sides above 30 Ft. Height Minimum COS rear upto 30 Ft.
Height Minimum COS rear above 30 Ft. Height From 25.0 Ft.
To 44.0 Ft.
According to shape of plot + parking From 25.0 Ft. To 44.0 Ft.
According to shape of plot 23.0 Ft.
According to shape of plot + parking From 15.0 Ft. To 23.Q Ft. According to shape of plot
(17) That the above specifications are strictly in accordance with the KBTPR 2002. The KBCA has complied with all the relevant provisions of law and the regulations at relevant time and nothing has been overlooked or violated and any sort of exemption/ relaxation has not been granted to the owner in any manner, and the said approval has been granted strictly in accordance with the law.
(18) That this honourable Court has passed order dated 28-2-2008, relevant portion of which reads as under:-- "3 and 4. The matter is already fixed on 19-3-2008, DCB as well as Expert Engineer of KBCA to reexamine the location of the building, keeping in view the grievance raised in this petition and apprise the court on the above date, copy of this order may be sent to Chief Controller of KBCA, so that there may not be any delay."
In compliance of the above- order, the Chief Controller of Buildings, KBCA, constituted a committee comprising of the following members;{{TABLE}} Mr. Nisar Ahmed TBCO, Jamshed Town (Head)
Mr. Khawaja Badie- uz-Zaman DCB, Planning Control Mr. Munir Ahmed DCB Jamshed Town Mr. Imran Ahmed 'Farooqui Sr. Architect, (Trusted professional of petitioner)
That the said committee conducted site inspection on 12-3-2008 in presence of the following:-
(i) Project Lic. Architect Mr. Akbar Jamil.
(ii) Project Lic. Engineer Mr. Arif Kasam.
(i.e) Mr. Shahid Nabi, the Owner.
(19) That the road existing between plot of the petitioner and of the respondent No.1, is 40 Feet were and any Nalah passing along any road is part and parcel of such road, it includes total dimension of the road mentioned in the layout plan and it is not measured separately.
(20) That the centre portion of road namely median, service road drain and main road are part and parcel of 150 Feet Wide road namely Expressway, it has been elaborated in Figure-II titled STREETS AND ROADS (G-1 & G 2) of the KBTPR-2002-(fixedafter Regulation 25-13).
(21) That the authority under the SBCO 1979 is empowered under section 21-A, to frame regulations and subsequently may amend or alter the same in consonance with the SBCO 1979. The Authority has amended the regulations vide Notification No. Caretaker DCO/ CDGK/35/2005, Karachi dated 4th August, 2005, which has been published in official Gazette of Government of Sindh as required under the law. Copy has already been submitted with the report of the KBCA.
(22) That the building standard as prescribed in Table 25-3 of the KBTPR 2000 (amended up to date) is applicable as marked by the MPGO, CDGK, moreover approval of building plan has been granted by the KBCA as per KBTPR 2002. The COS as per approved plan (more than requirement of KBTPR 2002) has been maintained at site as per report of the above-mentioned committee, relevant portion of which is reproduced as under:-- "At site in the rear block, construction work is nearly completed up to plinth level in accordance with the approved building plan and in the front log pilling work is completed for plinth."
(23) That as per table 25-3, the permissible Foot Print for plot having area more than 2000 Sq.
Yards is 70% for Ground Floor and 65% for Upper Floors, which has been followed in approved plan.
(24) That the said, committee has submitted report mentioning therein as under:-- "It is pointed out that the disposal of public sewer is also available at site and storm water drain disposal channel is also available at site of suit plot as well as petitioner's plot. Further it is submitted that Environmental Protection Agency Government of Sindh had also issued their NOC for the said project vide No. EPA/2006/03/ 28/IEE/52 dated 13-6-2006. As such the allegation of destroying ecology and environment of the surrounding area does not arise."
(25) That as per report of the committee, the proposed building is facing 150 feet were road, relevant portion reads as under:- "In this area in KBTPR there is no height restriction but the building is required to maintain the 65 Degree angle at front of pot. In front side the subject plot is faced 150 Ft were Shaheed-e-Millat Expressway. As such 65 Degree angle is maintained in the approved building plan. The proposed height of the building is 190 feet which is far below than the allowable height (321 feet)"
(26) That parking space is required to be provided for 312 cars whereas the owner has provided parking space for 618 cars (much more than that required), to facilitate the occupants and the visitors as well.
(27) That as per provisions/table Ho.25- 3 of KBTPR 2002, in case of corner plots COS on asides abutting the lane or road are condoned and arcade is provided and construction above the ground floor is also permissible over the arcade.
(28) That KESC Substation as per provision 9-1 of the KBTPR 2002 has also been provided in the, approved building plan, as per provision 9-6.5, the permissible clear height 9' -6" has been provided in the approved building plan. Internal/ventilation ducts have been provided as per KBTPR 2002 and the area of loft up to 40% of shop area with clear height 5 Feet is exclusive of the FAR.
(29) (1) Category of plot does not change with different type of construction.
(2) The greater includes lesser, as current sentences, greater shall be served.
(3) Title of any regulation is the essence of the text, therefore any word specifically mentioned in the title, needs no repetition in the text.
(30) That the honourable Division Bench of this honourable Court has passed an order dated 8-10- 2003 in C.P. No.D-1891 of 2001 in presence of the Counsel for City District Government (Respondent No.3) and the counsel for the KBCA (Respondent No.2) declaring the status of SBCO 1979 remain on the Statute Book continue to remain operative, relevant portions of the said order is are as under:-- "(1) Only Messrs Shahid Jamiluddin and Manzoor Ahmed representing the respondents Nos.2 and 3 and Dr. Qazi Khalid Ali, learned Additional Advocate-General Sindh have appeared."
(2) It was argued by Mr. Shahid Jamiluddin that the Sindh Building Control Authority was constituted under Ordinance IV of 1979 and is capable of suing and being sued in its on name and could 'not be treated as a department of the City District Government. Dr. Qazi Khalid Ali learned A.A.G. Also supported Mr. Shahid Jamiluddin view-point"
(3) However, all parties agree the provisions of Sindh Building Control Ordinance remain on the Statute Book continue to remain operative."
(31) That in view of the aforementioned facts and circumstances, it is very much clear that the approval has been granted strictly in accordance with law and the construction is also being raised in accordance with approved building plan and the objections so raised are contrary to law, rules and regulations, the roads having dimensions as mentioned above has been fully considered during grating approval and the relevant regulations with respect to roads, streets, open spaces etc. Have also been fully complied with. It is further submitted that there is no violation of any kind and the petition is unwarranted, therefore, same is liable to be dismissed."
15. We have examined the case in the light of the arguments of the learned counsel and have perused the relevant laws and the records of the case and also gone through the judgments relied on by the learned counsel, very carefully.
16. From the arguments advanced by the learned counsel it is seen that the gist of the objections which were raised against the construction of the subject building by the petitioner can be summarized as under:-
(1) Since the regulations had not been published in the Official Gazette in accordance with the provisions of section 19-A of the Sindh General Clauses Act, therefore the regulations had not come into force. After admitting that the Notifications had been published in the official Gazette on 5th September, 2008, the objection is that they would come into effect after such publication and since approved plan of the petitioner was approved somewhere in 2006 therefore these regulations could not have beets taken into consideration while approving the said plan.
(2) A draft of the amendments made in the Karachi Building and Town Planning Regulations (KBTPR) was not published in the Official Gazette and no objections were invited and therefore the amendments passed without fulfilling these formalities, had not been validly passed and these amendments were not to be considered for approval of the plan submitted by the respondent No.1.
(3) That since the regulations were not passed by the Authority specified under section 4 of the Sindh Building Control Ordinance, therefore such regulations are coram non judice and cannot be applied.
(4) That the Shaheed-e-Millat Expressway which is facing the subject building is not the main road serving the subject building and therefore height in accordance with the provisions of 25-1.8 of KBTPR, 2002 cannot be calculated by taking the Expressway as the main serving road but the road which is in front of the subject building, has to be considered the main serving road for the purpose of the calculation of the height of the building.
(5) That the FAR that is the Floor Area Ratio has to be the one applicable to a flat site and not the one which is applicable to a commercial site.
That the footprints have also to be computed as applicable to a flat site and not as applicable to a commercial site.
That no construction can be made on arcades.
(8) That compulsory open space has not been provided as specified in Karachi Building and Town Planning Regulations, 2002.
That the Committee which was constituted by respondent No.2 that is the KBCA to deliberate on the objections raised by the petitioner comprised of architect namely Imran Ahmed Farooqui, who had initially advised the petitioner about the irregularities on the basis of which the petition was filed, but while sitting in the Committee he had taken a complete u-turn and therefore the decisions of the Committee have been made biased and prejudiced by inclusion of this architect.
17. We will take up these points one by one. The first point which had been raised both by the learned counsel for the petitioner and the learned counsel for the respondent No.5 (i.e. The Shahri), is that under the provisions of section 19-A of the Sindh General Clauses Act the Regulations-which were purported to have been made on 4th August, 2005 were not published in the Government Gazette immediately on their promulgation but were Gazetted on 5th September, 2008 which means that they were published therein after a period of three years and one month on the basis of which the subject plan was approved. The main contention of the learned counsel for the petitioner and the learned counsel for respondents No.5 is that such amendments had to be published in the Sindh Government Gazette immediately after their promulgation and cannot come into effect till the time such regulations were published in the Sindh Government Gazette and therefore their argument is that such delayed publication had rendered the amendments null and void, Their alternate argument is that even if the delay does not render such amendments void, such amendments would only come into effect after they have been published in the Sindh Government Gazette and since the plan of the respondent No.1 was approved much earlier therefore the contention of the learned counsel is that while approving the subject plan these amendments which had not come into effect legally and validly, could not be considered and the approval of the plan should have been made only on the basis of the regulations which were applicable at the releant time and not on the basis of the amendments purportedly made on 4th August, 2005. The learned counsel for the petitioner in support of her contention on this point had relied on the following judgments:--
(1) MUHAMMAD SULEMAN AND OTHERS V. ABDUL GHANI (PLD 1978 SC 190).
(2) GOVERNMENT OF THE PUNJAB, FOOD DEPARTMENT V. Messrs UNITED SUGAR MILLS LTD. And another (2008 SCMR 1148)
(3) GOVERNMENT OF BALOCHISTAN V. HAJI MUHAMMAD AKBAR KANSI (PLD 2004 SC 261)
18. The learned counsel for the respondent No.5 adopted the arguments of the learned counsel for the petitioner and further argued that where a statute makes a requirement of publication of any regulation then as per section 22 of the Sindh General Clauses Act, 1956 it is a mandatory requirement that prior to signature, the regulations are (1) required to be published for the information of persons likely to be effected and (2) objections from the persons effected need to be invited, and considered. He submitted that since all the regulations to be made under Sindh Building Control Ordinance, 1979 are now mandatorily required to be published on'account of the insertion of section 19-A of the Sindh General Clauses Act, 1956 it is therefore a mandatory requirement that the amendments made to the KBTPR 2002 are required to be published for the information of persons likely to be affected and objections from the persons effected are to be invited and considered. The learned counsel submitted that since the formalities prescribed under section 22 of the Sindh General Clauses Act has not been complied with therefore it has rendered such regulations to be void regulations and the same cannot be considered for the approval of the plan of the respondent No.1. In this connection he placed reliance on the judgments reported as HAJI MUSHTAQ AHMED KHAN V. GOVERNMENT OF N.-W.F.P. (PLD 2000 Peshawar 73).
19. These contentions of the learned counsel for the petitioner and respondent No.5 were strongly opposed by the learned counsel for the respondent No.1 who strongly argued that the provisions of section 19-A of the General Clauses Act are not mandatory but are directory in nature as no consequence has been provided in General Clauses Act itself for non- publication of such regulations. Even otherwise, according to the learned counsel, the regulations were notified in the Official Gazette though he conceded the same was delayed. He further submitted that from the time such regulations were purported to have been made i.e. 4th August, 2005 they were being applied in all cases by the KBCA and therefore the departmental action in treating these regulations as valid has to be considered as lawful and if only in this case it is held that these amendments had not legally come into force then the respondent No.1 will be discriminated. In support of his contention that such delay in publication will not render these regulations invalid and these amendments will still be considered valid from the day they were purported to have been made, the learned counsel relied on the following judgments:--
(1) CHIEF COMMISSIONER KARACHI V. JAMIL AHMED AND ANOTHER (PLD 1961 SC 145)
(2) MANZUR-UL-HAQ V. CONTROLLING AUTHORITY, LOCAL COUNCILS MONTGOMERY and others (PLD 1963 SC 652)
(3) MUHAMMAD SIDDIQUE V. The MARKET COMMITTEE TANDLIANWALA (1983 SCMR 785)
(4) PAKISTAN THROUGH SECRETARY MINISTRY OF DEFENCE, AND OTHERS V. LATE CH. MUHAMMAD AHSAN (1991 SCMR 2180)
(5) MUHAMMAD HANEEF V. GHULAM HAIDER SHAH and 2 others (PLD 1982 KARACHI 957)
(6) MUHAMMAD TUFAIL V. PUNJAB LOCAL COUNCIL ELECTION 1990 CLC 68.
(7) REGINA V. SHEER METAL-CRAFT LTD. AND ANOTHER ((1954) 1 QB 586)
(8) BANGALORE we AND S MILLS LIMITED V. CORPORATION OF BANGALORE (AIR 1962 SC 962)
(9) BABU RAO V. UNION OF INDIA (AIR 1988 SC 440)
(10) STANDARD VACUUM OIL COMPANY V. THE TRUSTEES FOR THE PORT OF CHITTAGONG (PLD 1961 Dacca 278 D.B)
20. The learned counsel also argued that the word "shall" in section 19-A may be read as the word "may" and submitted that in a number of judgments it has been held that words "may" and "shall" in legal framework are interchangeable, depending on the context in which they are used and are not to be interpreted with rigidity which is attributed to them in ordinary parlance: Although he had relied on a number of judgments in this connection but it will suffice to consider the following three judgments of the honourable Supreme Court:--
(1) Muhammad Sale Chief Settlement Commissioner Lahore and 2 others (PLD 1972 SC 326).
(2) Muhammad Ismail v. The Province of East Pakistan and others (PLD 1964 SC 475)
(3) Sutlej Cotton Mills Ltd., Okara v. Industrial Court West Pakistan (PLD 1966 SC 472)
21. The learned counsel's next argument was that the presumption as to official act attaches every possibility to be explored to uphold these act.
22. On the second point raised by the learned counsel for the respondent No.5 regarding the publication of draft of the regulations and inviting objections and views of the general public as prescribed under section 22 of the Sindh General Clauses Act the learned counsel submitted that the plain reading of section 22 of the Sindh General Clauses Act would confirm that if the statute provides that rules made under the statutes before becoming affective should be published by way of draft, the non-publication will invalidate the rules if these are subsequently published.
However, in the present case section 21 of the Sindh Building Control Ordinance, 1979 does not require rules or regulations to be published by way of draft first, therefore, according to the learned counsel reliance could not be placed upon section 21 of the Ordinance, 1979 and in this connection he relied on a judgment reported as Haji Mushtaq Ahmed Khan and 2 others v. Government of N.- W.F.P. And 2 others (PLD 2000 Peshawar 73).
23. We would at this point like to reproduce section 19-A and section 22 of the Sindh General Clauses Act as the entire discussion will be focused on these two sections.
19A. Rules and orders, etc. To be published.---All rules notifications, orders, regulations and circulars having the effect of law made or issued under any enactment shall be published in the officials Gazette.
(22) Provisions applicable to making of rules or bye-laws after previous publication.---Where, by any Provincial Act, a power to make rules or by-laws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication, then, unless such Act otherwise provides, the following provisions shall apply, namely:--
(1) the authority having power to make the rules or bye-laws shall, before making them, publish a draft of the proposed rules or bye-laws for the information of persons likely to be affected thereby;
(2) the publication shall be made in such manner as that authority deems to be sufficient, or if the condition with respect to previous publication so requires, in such manner as the Provincial Government, prescribes;
(3) there shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration;
(4) the Authority having power to make the rules or bye-laws and, where the rules or bye-laws are to be made with the sanction, approval or concurrence of another authority, that Authority also, shall consider any objection or suggestion which may be received by the Authority having power to make the rules or bye-laws from any person with respect of the draft before the date so specified;
(5) the publication in Official Gazette of a rule or bye-law purporting to have been made in exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly made.
24. Froth a perusal of section 19-A which was incorporated in Sindh General Clauses Act on 18th September, 2002 it is seen that this section provides for publication in the official Gazette of all Notifications, Orders Regulations and Circulars having the effect of law issued under any enactment and therefore the conclusion which can be drawn is that it will be deemed to apply to all enactments A and the amendments made in the regulations and such enactments and amendments have to be published. It is however an admitted fact that such amendments were published on 8th September, 2008. In section 19-A there is no provision which may pertain to the consequences which may arise if the publication is made after a considerable delay. In the light of the above observation we have perused the judgments relied on by the learned counsel.
25. In the case of Muhammad Suleman quoted supra the honourable Supreme Court while deciding a case of pre-emption observed that in section 8(2) of the relevant law it was provided that the matter will be declared by a Notification and since Notification according to section 2(41) of the West Pakistan General Clauses Act shall mean a Notification published under proper authority in the proper gazette therefore the law would come into effect on the publication of the Notification. In this very case their Lordships observed that according to them each case will depend on its on facts and circumstances and they confined themselves to the facts of the case before them. This case is distinguishable inasmuch as section 21-A of the Sindh Building Control Ordinance, 1979 under which the amended regulations had been made, just provides that the Authority may frame regulations not inconsistent with the provisions of this Ordinance and rules made there-under for carrying out the purposes of that Ordinance. We are therefore of the opinion that this case is distinguishable and does not apply to the facts of the present case.
26. In the case of United Sugar Mills Ltd. Quoted supra also the law provided for the Notification to be issued and again relying on the section 2(41) of the West Pakistan General Clauses Act, 1956 the Court held that the Notification was not published in the official Gazette the relevant portion of the judgment is reproduced below: "Notified order would mean notification through publication in the Official Gazette and not by passing an order and keeping the same in the office of the appellants. Reference may be made to the decision of this Court in Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190 wherein this Court observed: "The word "notification", according to section 2(41) of the West Pakistan General Clauses Act VI of 1956 "shall, mean a notification published under proper authority in the official Gazette."
The above provision in section 3 of the said Act clearly and specifically states that order is to be notified for the purpose, therefore, the contention of learned Assistant Advocate-General Punjab that non-issuance of notification in the official Gazette would not invalidate the Notification has no merit and substance. It is also settled proposition of law that if law has provided to a particular act in a particular manner the same is to be done in that particular manner or not. The notified declaration could take effect from the date of publication in the Gazette and not any prior date. In the instant case it has been conceded by the learned Assistant Advocate-General on behalf of the appellants that notification has not yet been published, therefore, we find no legal or factual infirmity with the impugned judgment, consequently no exception could be taken to it."
27. We are of the view that neither section 19-A of Sindh General Clauses Act nor section 21A of Sindh Building Control Ordinance provide for the regulations being notified and section 19-A only provides that it shall be published in the official Gazette and does not provide that if it is not published in the official Gazette, what consequences will ensue.
28. In the case of Saghir Ahmed through Legal heirs v. Province of Punjab through Secretary, Housing and Physical Planning Lahore and others (PLD 2004 Supreme Court 261) the learned counsel for the petitioner has relied on the following observations:-- "12.------- However, we would like to observe that by virtue of insertion of section 20A in the General Clauses Act, 1897 (X of 1897) by Ordinance No.XXXIII of 2002, all rules, orders, regulations and Circulars having the effect of law made or issued under any enactment are being published by the Federal Government in the Official Gazette. The Provincial governments are expected to follow suit so as to inspire public confidence in the policy decisions and to promote the system of good governance in the policy decisions and to promote the system of good governance and transparency.'
29. However, a perusal of the case leads to the conclusion that this judgment is not in favour of the petitioner but is in fact in favour of the respondents No.1. In this regards we would like to produce paragraphs 11, 12 and 13 of this judgment:-- "(12) In view of the above discussion, we hold that the publication of notification dated 28-5-1976 of approval of the Housing Scheme by the Provincial Government under section 3 of the Act, in the official Gazette, was not a sine qua non for its legal validity, efficacy and its non-publication was of no consequence. However, we would like to observe that by virtue of insertion of section 20A in the General Clauses Act, 1897 (X of 1897) by Ordinance No.XXXIII of 2002, all rules, orders, regulations and Circulars having the effect of law made or issued under any enactment are being published by the Federal Government in the official Gazette. The Provincial Governments are expected to follow suit so as to inspire public confidence in the policy decisions and to promote the system of good governance in the policy decisions and to promote the system of good governance and transparency.
(13) The learned Law Officer appearing for the respondents categorically stated that, after the acquisition of the land, the Housing Scheme had been developed and necessary utility services had been provided for the housing colony. Therefore, the matter has become a past and closed transaction which need not be allowed to be reopened on hypertechnical grounds. Neither any prejudice was shown to have been caused to the petitioners nor any of their legal rights could be said to have been affected in any way by mere non-publication of approval of the Housing Scheme in the official Gazette. The impugned judgment by the Lahore High Court (now reported in PLD 2002 Lahore 217) does not suffer from any legal infirmity so as to call for interference by this Court. This is not a fit case for grant of leave to appeal."
30. A perusal of the above extract reveals that the onus is on the petitioner to show that any prejudice was caused to them or any of the legal rights were affected in any way by mere non- publication of the scheme in the official Gazette. The honourable Supreme Court has also observed that no hard and fast rule of universal application can be laid down on the legal affect of non- publication of the Notification in the official Gazette but has further observed that the provisions of publication of Notification in the official Gazette can be treated to be mandatory in nature where rights and liabilities of other persons are involved.
31. The learned counsel' for the petitioner and the respondent No.5 have not been able to satisfy us that in what manner they were prejudiced or affected or their rights and liabilities were compromised merely due to delayed publication of the amended regulations in the official Gazette and therefore this particular case cannot be considered to be a case where law can be struck of only due to non-publication of the regulations and amendments in the official Gazette.
32. In the case of Multilne Associates v. Ardeshir Cowasjee and others (1995 SCMR 362) relied on the by the learned counsel for the respondent No.1 the Honourable Supreme Court has held as under:-- "34. In section 21-A(3) of the Sindh Buildings Control Ordinance, 1979, as stated above, the words "to be deemed to be Regulations" have been used in the circumstances mentioned above, which clearly show that Karachi Building and Town Planning Regulations, 1979 were in existence and already available, and were to be acted upon until fresh regulations were framed ag provided under section 21-A(1) of the said Ordinance. Therefore, words "to be deemed" have not.Been used to connote something which is imaginary and nonexistent but refers to specific regulations which were in existence and comprehensive. Even if they are not published in the Gazette under this Ordinance or under any other previous law, then also as draft regulations they have complete statutory sanction conferred upon them by section 21-A(3) by naming them specifically.
Hence, they can be construed and acted upon as regulations for the purpose of this Ordinance until fresh regulations are made provided the regulations as such are not inconsistent with the provisions of this Ordinance and rules framed thereunder. In peculiar circumstances of this case and reasons stated above, we are of the view that in this case deeming clause cannot be equated with legal fiction supporting imagination of state of affairs which did not exist."'
33. The honourable Supreme Court also laid down a' judicial concept that law should be interpreted in a manner that it should be saved rather than destroyed and the Courts should lean in favour of upholding constitutionality of legislation and it is, therefore, incumbent upon the Courts to be extremely reluctant to strike down laws as unconstitutional and this power should only be exercised when absolutely necessary for injudicious exercise of this powers might entail grave and serious consequences.
34. After examining the provisions of section 19-A of the General Clauses Act and section 21A of the Sindh Building Control Ordinance, 1979, respectfully following the judgment in the Multiline case quoted supra we are of the considered opinion that delayed publication of the regulations in the official Gazette will not render such regulations to be invalid as in #tbs G H I #the the facts of this case the provisions of section 19-A of Sindh General Clauses Act are held to be directory in nature and even non-publication will not render them invalid. However, the question as to when these regulations will become applicable has already been decided by this Court in the case of Mst. UMMATULLAH through attorney v. PROVINCE OF SINDH through Secretary Ministry of Housing and Town Planning, Karachi and 6 others (PLD 2010 Karachi 236), incidentally authored by one of us i.e. Mushir Alam C.J.. In this case one of the points before the learned Division Bench was that whether the impugned Notification which carried the date of 29-10-2002 whereas it was actually gazetted on 16-10-2008, will become applicable from 29-10-2002 or from 16-10-2008 and the learned Division Bench on this point held as under:- "20...,.In view of foregoing discussion, we are of the considered opinion that impugned Notification substituting Regulation 25-12.2, subject to legitimacy, would apply prospectively from the date of its publication in the official Gazette dated 16-10-2008 and not retrospectively from the date mentioned on the title of the Notification."
35. Since the above judgment is binding on us, therefore, we hold that the regulations which were purported to have been made from 4th August, 2005 will not be applicable from that date but from 5th September, 2008 when the regulations were gazetted. However, the matter does not end here as we have to see that despite the fact that the plan of the subject building of the respondent No.1 was approved before the publication of the above regulations in the official Gazette, whether these regulations F will apply to him or not. An examination of these amended regulations leads to the conclusion that these regulations are procedural in nature and not substantive. In nature and are remedial and beneficial to the builders and are also curative in nature. It is a trite law that procedural amendments being beneficial and curative apply to all pending proceedings and since it is no body's case that the building in question was already completed before the publication of the regulation, therefore, we are of the considered view that the regulations will apply to the building in question and if the plan had not been approved earlier by consideration of these regulations then the respondent No.1 could have applied for revision of the plan on the basis of the amended regulations. In this connection reliance is placed on the judgment of the Honourable Supreme Court in the case of COMMISSIONER OF INCOME TAX V.
SHAHNAWAZ LTD. And others (1993 SCMR 73) where the honourable Supreme Court has held as under:-- "The question whether remedial statutes can be given retrospective effect has been considered by Crawford in his "Statutory construction" (1940 Edn.) in para 282 as follows: "282. Remedial statutes.---Even remedial statutes may be subject to the principles hereinto force discussed, opposing any construction which will give the enactment retrospective operation. Yet, since remedial statutes are usually looked upon with favour by the Courts, they should be liberally construed. But there appears to be considerable confusion in the-cases with reference to giving remedial Acts retrospective effect through construction. If the rule of liberal construction is to be applied, as it obviously should then any doubt should be resolved in favour of retrospective operation, if such operation does not destroy or disturb vested rights, impair the obligations of contracts, create new liabilities violate due process of law or contravene some other constitutional provision, and if such operation will carry out the intention of the legislature as ascertained through the application of the principle of liberal construction. In other words, a statute relating to remedial Jaw may properly, in several instances, be given retrospective operation."
The conclusion arrived at by the High Court on this question was expressed in the following words: "In our view, as the amending provision under consideration had been inserted in subsection (6) of section 18-A to remedy a wrong that was being done to the assessee, and the amending provision does not affect any vested right or create any new obligations, the amending provision is to be given retrospective operation for extending benefit to the affected parties in pending cases, to give effect to the intent of the legislature. As observed earlier, a wrong was being done to the assessee by providing for an indefinite period during which they were made liable for payment of additional tax at the rate of 2% per mesem and this wrong was sought to be remedied by the remedial and curative amendment brought about by the Finance Act, 1973. If the intention of the Legislature had been that this remedy should be available only in respect of assessment for the year 1973-74 and subsequent years, the legislature would have used appropriate words to express such intention. No such appropriate words are mentioned in the amending provision. There is no reason why the remedial provision of the amending law should not be applied to pending proceedings. In fact, this appears to be the intent of legislature."
While applying its dictum, the High Court, however, felt that the retrospective operation visualized by the instant amendment could extend only- to such "cases which were pending at the time the amending law was enacted i.e. Cases which had not been finally determined or proceedings which had not attained finality. The retrospective effect of the amending law would, therefore, apply only to those cases where assessm ent had not been made by the ITOs or where an appeal was pending before the Tribunal or a reference was sub judice before the High Court, at the time the amending law was enacted. The cases which had finally been determined or had attained finality i.e. Which were past and closed transactions, could not be reopened under amending legislation as there are no express words to that effect employed in the amending law."
36. We may also point out that it has been contended by Dr. Faroagh Naseem Advocate the learned counsel for the respondent No.1 that after these amended regulations were introduced a number of plans were approved before the publication of such regulations in the Gazette and this statement has not been denied by the counsel for the petitioner or respondent No.5. He therefore prayed that if approval of his plan is withdrawn due to this reason at this stage he will be discriminated and suffer irreparable damage. This contention has also a lot of force. We are, therefore, of the considered view that though the regulations will come in force after publication in official Gazette but the delayed publication in this particular case will not invalidate the approved plan of the subject building on which construction is being made by respondent No. 1.
37. Regarding contention of the learned counsel for the respondent No.5 that since prior publication of the regulations for seeking objections and views of the general public was not made as specified in section 22 of the Sindh General Clause Act therefore amended regulations are invalid, we have carefully perused the provisions of section 22 of the Sindh General Clause Act and have noted that this section does not refer to section 10-A of the General Clauses Act but only refers to the provisions of all West Pakistan Acts which provide a power to make rules or byelaws subject to condition of the rules or byelaws being made after previous publication. In this particular law the section which grants the power to the Authority to make rules or byelaws is section 21-A of Sindh Building K Control Ordinance, 1979 and there is no provision in this section for the rules or byelaws being made after prior publication. Even in section 19-A there is no provision for the rules or Notification having the effect of law to be made after previous publication. We are therefore of the considered view that section 22 of the Sindh General Clauses Act will not apply in respect of regulations being made under the Sindh Building Control Ordinance and therefore there was no necessity of previous publication for inviting objections and views of the general public and the regulations made on 4th August, 2005 cannot be declared to be invalid on this ground also.
38. Coming to the third point, the learned counsel for the respondent No.5 had argued that the amended regulations were passed by the caretaker Nazim and according to him the caretaker Nazim not have the jurisdiction to make any amendments in KBTPR 2002. According to the learned counsel only the Authority nominated under section 4 of the Sindh Building Control Ordinance, 1979 had the jurisdiction to frame regulations for-carrying out the purpose of the Ordinance under section 21-A of the Ordinance, 1979 and the Nazim had been nominated under section 4 to frame the regulations vide Notification dated 30th April, 2004. According to him the Notification dated 30th April, 2004 is no longer in field and the Minister for Local Authorities has been declared as the authority under section 4 of the Sindh Building Control Ordinance, 1979. He argued that the only powers which had been conferred on the caretaker Nazim under section 179 of the Sindh Local Government Ordinance, 2001 were to perform functions and exercise powers of the Nazim of the respective local governments till the newly elected Nazim takes the oath of his office. He further argued that the Nazims' powers did not include the power to frame rules under section 21-A of the Sindh Building Control Ordinance, 1979 as he was authorized to do it by being notified as an authority under the provisions of section 4 of the Ordinance, 1979. He argued that the caretaker was not entrusted with the powers under section 4 of the Sindh Building Control Ordinance, 1979. The learned counsel while arguing stated that the definition of word "Nazim" did not include the Caretaker Nazim and without prejudice to his contention he argued that even if the definition of "Nazim" included the caretaker Nazim, the caretaker Nazim in his on capacity should have been appointed as authority under section 4 and only then he would have been empowered to frame regulations. The learned counsel submitted that right to legislate is a sacrosanct right as clarified in the preamble to the Constitution and every authority promulgating law in the form of rules, byelaws or regulations is bound to do so within the limit prescribed in the statute and any act in excess of the same is to be declared as ultra vires and void and in this connection he read on the following judgments:-
(1) United Industrial Bank Ltd. v. Mohan Bashi Saha (PLD 1959 SC 296)
(2) Province of East Pakistan v. Nur Muhammad (PLD 1964 SC 451)
(3) The Chairman Railway Board Lahore v. M. Wahabuddin and Sons (PLD 1990 SC 1034)
39. The learned counsel for respondent No.1 submitted that after the dissolution of all the local councils by Notification dated 30th June, 2005 by another Notification of even date the Government of Sindh appointed District Coordination Officer in Sindh as Caretaker for respective Districts with immediate affect to perform the functions and exercise powers of Zila Nazim under section 179A of the Sindh Local Government Ordinance, 2001, therefore, according to the learned counsel, the District Co-ordination Officer Karachi stepped into the shoes of the defunct Nazim City District Government Karachi and therefore according to him the caretaker Nazim of the City District Government Karachi was empowered to exercise the powers and functions of KBCA for which his predecessor Nazim had been authorized. The learned counsel went on to argue that the ordinary law does not envisage a distinction between a regular incumbent and a caretaker holder of office, except that a caretaker is one who temporarily fulfils the functions of an office. In support of his contention that the caretaker has almost the same powers as that of a regular Authority the learned counsel relied on the following judgments:--
(1) Benazir Bhutto v. Federation of Pakistan (1991 MLD 2622)
(2) Khawaja Ahmed v. Federation of Pakistan (PLD 1991 Lahore 78)
(3) Muhammad Yaseen v. Province of Punjab (1994 PLC (CS) 215.
40. According to the learnt counsel the only limitation and restriction placed on the caretaker is by virtue of subsection (4) of section 179 of the Sindh Local Government Ordinance, 2001 that during the election period no new development scheme shall be initiated and no posting or transfer of any officer/official of the Local Government without the previous approval of the Chief Election Commissioner of Pakistan during the election period.
41. He further submitted that sometimes after the above regulations were framed, the elected Nazim had assumed office and he had not disturbed the above regulations and all the plans were being approved in accordance with the above regulations and it was during the time of elected Nazim that the regulations were published in the Gazette which means he had impliedly consented to the regulations by giving acquiescence. He submitted that the successor of Nazim whatever he may be called also assumes assignment of the authority under section 4 of the Sindh Building Control Ordinance, 1979 and has the powers to frame regulations. He further submitted that the Minister of Local Bodies was assigned the authority under section 4 of the Ordinance, 1979 somewhere in 2008.
42. This aspect of the regulations was also discussed in the case of Ummatullah quoted supra authored by one of us i.e. Mushir Alam C.J. Whereby the learned Division Bench had very elaborately discussed the point involved and arrived at its decision'in paragraph 27 of the judgment which is reproduced below:-- "27. As observed above, that the subordinate legislative instruments comes into the force on the date of publication, provided same was issued "under proper authority" (see subsection (41) to section 2 of General Clauses Act, 1956. Thus on the date of Notification dated 29th October, 2002 Housing and Town Planning Department, Government of Sindh, had the legislative competence under section 21-A of SBCO, 1979 to frame and or to amend the Regulations framed thereunder. The legislative competence of the "Authority" is judged and examined from the date of exercise of power to frame regulation and not from the date of publication of such subordinate legislative instrument. M noted above, a subordinate legislative instrument is effective from the date of publication of notification in the Official Gazette and not merely on the date of making it. In this view of matter on 29th October, 2002 the date of impugned amended regulation, Housing and Town Planning Department, Government of Sindh, was the competent "Authority". It matters not that same was published later on 16th October, 2008 during the tenure of the successor "Authority" i.e. "Minister", Local Government. Very fact that the successor Authority; has taken no exceptions, to the publication of impugned regulations, in the official Gazette, shows that it has the blessing of the successor as well. Therefore, contention of Mr. Badar Alam, that the impugned amended regulation was not framed by the competent authority under facts and circumstances has no force."
43. A perusal of the above leads to the conclusion that when the successor authority takes no exception to the publication of impugned regulations, in the official Gazette, it implies that the regulations have the blessing of the successor as well. Even otherwise, the fact that for four years after the issuance of the Notification specifying the Nazim as the authority under section 4, no further Notificatibn was made and no authority was specified under section 4, leads to the conclusion that the caretaker had steppes]. Into the shoes of the Nazim and could exercise all the powers, except those which were specifically excluded by section 179A, including all the powers assigned to the Nazim under any of the provisions of the Ordinance. We are therefore of the considered view that the. Regulations have been framed under proper jurisdiction and authority and the caretaker was not coram non-judice for framing such issues.
44. The next point which has to be decided is that for computing the height of the building in accordance with the provisions of regulation 25-1.8 which road will be considered to be the main serving road. The contention of the learned counsel for the petitioner is that the road which is the serving road for this building is at best only the 40 feet were road which runs along the building whereas the contention of the learned counsel for respondent No.1 is that for the purpose of his building the road serving the building is not this 40 feet were road but 150 feet were Shaheed-e- Millat Expresswa y which is the main road serving the building. The learned counsel for the petitioner has relied on a number of judgments in support of her contention that redundancy cannot be attributable to the legislature and that for interpretation of the words "road serving" no factual investigation is involved and this Court on the basis of the possible evidence can decide this issue.
As already noted in the arguments, the learned counsel for the petitioner had submitted that if the height of the building is calculated under regulation 25-1.8 of the Karachi Building and Town Planning Regulations 2002 by considering the 40 feet were road as the main road serving the building then the height would be 85 feet whereas in the plan height of 190 feet has been approved. She, however, conceded that this aspect of the case has not yet been decided by any Court.
45. Dr. Faroagh Naseem the learned counsel for the respondent No.1 strongly opposed this contention and submitted that the road, which according to the learned counsel should be considered the main road serving the building, does not even has a name and is basically a service road to main Shahra through the Shaheed-e-Millat Expressway. He submitted that under regulation 21.4.1 of. KBTPR, 2001 it has been provided that for highways and major roads of not less than 100 feet (30m) a permanent service road shall be provided on each side of the Highway/Boulevard. Since the width of the Shaheed-e-Millat Expressway is 150 feet therefore the learned counsel submitted that this 40 feet were road can at best be considered a service road of Shaheed-e-Millat Expresswa y. He also referred to regulation 21-4.5 of the KBTPR, 2002 according to 'which no direct access to highways or major roads will be allowed except through service roads at appropriate distances.
46. Before dilating on this point we would like to reproduce regulation 25-1.8 which is the subject matter of the controversy.
25-1.8. Height related setbacks of buildings For all buildings except houses the height of buildings will be such that it would not intersect an imaginary line from, the opposite side of the main road serving the building at an angle opposite side of the main road serving the building at an angle of 650 with the horizontal. (Not applicable on chimney shaft of industrial buildings, flag masts and communication equipment, FIGURE-6)
A bare perusal of the above regulation immediately leads to the first impression that the height of the building has to be computed by referring to the main road serving the building. Regulations 21- 4.1 and 21-4.5 also leads to the conclusion that all roads having width of more than 100 feet will require service roads and no direct access shall be provided except through these service roads.
We are therefore clear in our minds that the 40 feet were road can at best be called service road m and the main road serving the subject building in terms of regulation of 25-1.18 is the Shaheed-e- Millat Expresswa y and it has already been conceded by the learned counsel for the petitioner that if Shaheed-eMillat Expresswa y way is considered to be the main road serving the building then the height which has been approved is in accordance with the provisions of 25-1.8.
47. The 5th and 6th objection raised by the learned counsel for the petitioner is that the FAR which is the Floor Area Ratio has to be one applicable to a flat site and not the one which is applicable to the commercial site and the footprints have also to be applicable as applicable to flat site and not the one applicable to the commercial site and according to her as per the approved plan the FRA and the footprints which have been approved are the footprints applicable to a commercial site and not to a flat site. In support of her contention the learned counsel has submitted that since as per the proposed approved plan there will be 231 flats and only 37 shops, therefore, the dominant use of the building is for construction of flats and not of shops and therefore the FRA and the footprints should be computed under regulation 25-4 for flat site category and not under regulation 25-3 which is for commercial site category. This contention has also been strongly opposed by the learned counsel for respondent No.1 Dr. Faroagh Naseem. He submitted that the case falls under regulation 25-9.6.7 of KBTPR, 2002 which provides that for all commercial/residential-cum-commercial plots facing more than 10 meters road/street width the minimum COS and footprints shall be the one which is prescribed under Clause 25-3 of the regulations which pertains to the commercial plots. He further submitted that in spite the fact that FAR has not been mentioned in regulation 25-9.6.7 of the 2002 Regulations but on the basis of similarity the provisions contained in regulation 25-9.6.7 may also be applied to FAR.
48. We have examined the issue in the light of the above arguments and have perused regulation 25-9.6.7 which specifically provides that all commercial/ residential-cum-commercial plots facing more than 10 meters road/street the minimum COS and footprint as prescribed in clause 25-3 will apply. We also find ourselves in agreement with the learned counsel for respondent No.2 that in view of the fact that footprints and COS are to be provided as per commercial category therefore FAR will also be provided as specified in regulation 25-3. The contention of the learned counsel for the petitioner that when there is a conunercial/residentialcum-commercial property for allowability of footprints and COS and FAR what should be seen is whether the dominant use of the building is for residential purpose or commercial purposes falls to the ground by the provisions of section 25-9.6.7 as no such condition is provided in that regulation. It is trite law that words, should not be added in a statute to arrive at an interpretation and only the actual words used should be construed to interpret a particular section and therefore we regret we cannot read into regulation 25-9.6.7 that the applicability will. Depend upon the dominant use of a particular category in the property. We therefore 'hold that footprints, compulsory open sliaces and. FAR have correctly been allowed under the provisions of 25-3 as they do not fall within the provisions of section 25-4 which deals with flat sites as it is nobody's case that the subject property has been designated as flat site in the master plan of the authority.
49. The next objection raised by the learned counsel for the petitioner is that no construction can be made on the arcades in accordance with the provisions of regulation 25-3.2(3). This objection has also been opposed by the learned counsel for the respondent No.1 who has submitted that there is nothing in the objection to substantiate that above the arcade there can be no construction. He further submitted that it is a settled principle of interpretation that whatever is not expressly prohibited is permitted. From a perusal of 25-3.2(3) we have seen that in case of corner buildings, COS have been condoned and arcades can be provided and arcade is defined in the regulation 2-12 to mean "a covered walk-way or a verandah between the shops and the street/footpath on which the shops abut". While we agree that compulsory open space means the spaces open to sky but the definition of arcade leads to the conclusion but it is not open to sky but a covered walk way and once a provision for condonation of compulsory open spaces is provided irrespective of commercial plans and it has been provided that arcades will be provided then unless it is specifically prohibited we are of the view that construction can be allowed on such L arcades. However, if the arcades have been provided for the purpose of extension of the roads then perhaps no construction can be allowed on such arcades as if construction is allowed and tomorrow the road is being extended the entire construction may have to be demolished for the purpose of extension of the road which is a public utility. However, if the arcade is a part of the plot and is not to be considered for extension of road then construction can be allowed. The KBCA is directed to ascertain whether such arcades may be subject to demolition in case extension of road is required on or any part of the plot and then decide this issue in the light of the above observations..
50. The 8th objection is with regard to whether compulsory open spaces have been provided as specified in Karachi Building and Town Planning Regulations. The counsel for the petitioner and respondent No.5 have argued that COS has not been provided as per the regulations whereas counsel for the respondents Nos.1 and 2KBCA have strongly contested this contention and have submitted that compulsory open spaces have been provided in accordance with the regulations.
This is a factual matter which cannot be adjudicated in a writ petition, We will however direct the KBCA i.e. M respondent No.2 that if any 'objection is raised whether the compulsory open spaces have been provided in accordance with the regulations the same may be examined and a speaking reply be given to such objection. The KBCA authorities are also directed to ensure that sewerage, water and other facilities are available in abundance not only to cater to the project under dispute but also to all other projects including the project of the petitioner.
54. So far as the 9th objection of the learned counsel is concerned we have while adjudicating on this petition not considered the compliance report submitted by the Committee appointed by the KBCA i.e. Respondent No.2 and therefore the question whether the inclusion of Mr. Imran Ahmed Farooqui the architect, who had initially advised the petitioner about the irregularities on the basis of which the petition was filed, in the Committee has prejudiced the report of the Committee has become a. Question of academic interest only and we refrain from answering the above question.
This petition is disposed of in the above manner..