' AQEEL AHMED ABBASI, J.---Being aggrieved and dissatisfied with the judgment and decree dated 30th July 2004 passed by the learned Single Judge of this Court in Suit No,328 of 2003, the appellant has preferred the instant High Court Appeal with the prayer to set aside the impugned judgment and decree and further to consider as to whether the respondent i,e, Karachi Cantonment Board while exercising powers under Section 185 of Cantonment Board Act, 1924, has acted justly and fairly while making a decision in the Board Meeting held on 10-7-2002.
2. Brief facts for the purposes of disposing of the instant High Court Appeal as recorded by the learned Single Judge are that the appellant the sole proprietor of M/s. Chappal Builders and the owner of Plot No,221-E.I.Lines, Saddar, Karachi, engaged in the business of construction of multi- storeyed buildings at Karachi. As per pleadings, the appellant/plaintiff applied for approval of building plan for the building proposed to be constructed on the subject plot in accordance with Cantonment Laws under covering letter. Dated 2nd October 1998, which contemplated 16 floors consisting of 168 flats plus Pent House with a height of 150 feet with 62 degree elevation. As per pleadings, under Bye-Law No,15 total height of the building is not to exceed 1 and 1/2 times of the width of the road at 62 degree elevation. The Building Plan was submitted by the appellant on 2-10- 1998. It is stated that the Military Estate Office vide its letter dated 6th October 1998 granted its No Objection of the Building Plan submitted under the covering letter of 2-10-1998. On 6-10-1998, a letter was addressed to the defendant the Military Estate Office, recommended the Building Plan submitted by the plaintiff on 2-10-1998 as being within the frame work of the Bye-Laws with the No Objection Certificate. On 10-11-1998, the appellant claims to have paid scrutiny fee for the approval of the Building Plan in the sum of Rs,6,64,443/-. It appears that the respondent vide letter dated 13- 11-1998 replied that the permission would only be accorded after the receipt of the following:
(i) Soil testing report, Structural calculation/drawings.
(ii) N.O.C, for services like electricity, Water and Gas.
' It was further stated in the said letter that the construction should not be undertaken prior to the issue of Municipal Approval subject to the compliance of the above two conditions. It was thus apparent that the defendant had no other objection to the Building Plan itself except that the requirements stated in the letter of 13-11-1998 were required to be met. On 21-11-1998 the respondent also granted permission for the sale and advertisement of the project of the plaintiff in respect of Plot No,221, E.I. Lines, Dawood Pota Road, Karachi known as "Chapal Navinta Mall and Luxury Apartments". Thereafter the Vetting Report dated 22-2-1999 was submitted in Court. As per pleadings, the appellant requested the respondent to allow permission for the construction of Arcade. On 19th July 1999, it is alleged that the respondent permitted the construction of the Arcade however added conditions that no construction whatsoever should be made over the Arcade. It is stated that vide letters dated 30-8-1999 and 4th November 1999 the respondent objected inter- alia to erection of columns over Arcade towards Dawood Pota Road and construction of landing stair cases towards Plot No,220.. It appears that the appellant also submitted a formal notice dated 18-4-2000 along with Building Plan to the respondent for the regularization of the Building Plan. As per pleadings, appellant also served statutory notice dated 14-6-2000 and letter dated 30-6-2000 upon the respondent/defendant stating therein that 15 days period has been expired since the submission of the Building Plan dated 22-4-2000, therefore, in terms of Section 181(6) revised building plan stands sanctioned. Thereafter several other letters were exchanged between the appellant and the respondent relating to approval of deviation in the Building Plan. The appellant/plaintiff vide letter dated 9-2-2001 submitted another building plan. On 9th March 2001, the respondent asked for Expert Opinion to the effect that if unauthorized construction in compulsory open space is demolished whether it would cause serious damage to the structure, but no opinion was received. Respondent issued notices dated 28-11-2001, 29-11-2001, 20-12-2001 for demolition of unauthorized construction, against which appellant/plaintiff filed appeal before Director Military Land & Cantonment, Karachi, who dismissed the appeal vide his order dated 20-3- 2002. It is stated that on 3-4-2002 applications were invited for regularizations of the project through Advertisement in daily Jang, in response of which appellant/plaintiff submitted regularization plan of the subject building, which according to appellant was turned down by the respondent on the ground that since appellant's/plaintiff's building was under construction hence did not come under the purview of the notice published in newspaper. As per appellant, the respondent was duly apprised of the fact that the provisions for the Arcade have been allowed and deviations in the approved building plan have been approved in the following Projects at Karachi:
(1) Jeddah Centre, Raja Ghazanfar Ali Road - Samar Shaheed Road. - (2) Naz Plaza, M. A. Jinnah Road - Dawood Pota Road.
(3) Jinnah Avenue, Dr. Dawood Pota Road, M.A. Jinnah Road.
(4) International Centre, Abdullah Haroon Road - Sarwar Shaheed Road.
(5) Cambridge Luxury Apartments.
(6) Panorama Centre, Raja Ghazanfar Ali Road - Zaibunnisa Street.
(7) APWA Centre - Abdullah Haroon Road - Depot Lines.
(8) Elphi Galleria - Raja Ghazanfar Ali Road - Sarwar Shaheed Road.
3. Suffice to submit, in spite of repeated and lengthy correspondence between appellant and the respondent in this regard, the Building Plan of the appellant, could not be approved by the respondent, resultantly the appellant filed a suit seeking declaration in terms of the following prayers:
(i) To declare that the Building Plans submitted by the plaintiff on 22-4-2000 are deemed to be approved by operation of law
(ii) To grant Mandatory Injunction directing the defendant to approve the Building Plan submitted by the plaintiff on 22-4-2000.
(iii) To grant Permanent Injunction restraining the defendant from implementing the Notice dated 12th March 2003 of demolition of the Building constructed on Plot No,221, E.I. Lines Dawood Pota Road, Saddar, Karachi known as the Chapal Navinta Mall and Luxury Apartments or from interfering with the construction work thereon or restraining them from taking any other adverse action against the plaintiff.
(iv) Cost of the Suit.
(v) Any other further relief or relief(s) that this honourable Court may deem fit and proper in the circumstances of the case."
4. The appellant/plaintiff in support of his contention submitted the documents ranging from exhibit P-1 to P-50. The respondent filed written statement along with listed documents, thereafter the following consent issues were adopted by the Court.
(1) Whether the building known as Chapal Navinta Mall is being constructed contrary to law from its very inception?
(2) Whether a building Chapal Navinta Mall is being constructed according to revised plan dated 22 April 2000 as submitted by the plaintiff, as alleged by the defendant, contrary to section 178-A, Cantonments Act, 1924 or KCB Building Bye-Laws 1983 can be made subject to approval under section 181(6) of the Cantonment Act, 1924 including Bye-Law No,12 of the said KCB Building Bye- Laws 1983?'
(3) Whether the plaintiff could advertise for sale, of units in a 16 storey building when he had submitted a plan for G +9 dated 7 September 1998 for approval?
(4) Whether the other buildings in the area are in excess of plot ratio 1:6 and have covered Arcades in particular Naz Plaza, Cambridge Shopping Mall and Jeddah Gold Center have been regularied?
(5) Whether the defendant discriminated between the plaintiff and the other builders including of Naz Plaza, Cambridge Shopping Mall and Jeddah Gold Center?
(6) Whether the plaintiff discriminated against the defendant by not approving the revised plan dated 22-4-2000 which is allegedly contrary to KCB Building Bye-Laws 1983?
(7) Whether the plaintiff or the defendant has violated the order dated 15 April 2003 and committed Contempt of Court of this Honourable Court?
(8) What should the decree be?
5. The learned Single Judge, after hearing both the parties and examining the evidence produced by them dismissed the suit of the plaintiff:
6. Learned counsel for the appellant having read out the relevant portion of the impugned judgment, and after having referred to various documents exhibited by both the parties, has seriously assailed the impugned decisions of the authorities below as well as the impugned judgment and decree, whereby the regularization of the revised building plan was declined. At the very outset, learned counsel for appellant referred to the provisions of section 185 of the Cantonments Act, and submitted that the respondent has discretion in law to regularize the impugned violation. Per learned counsel, the precise controversy involved in the instant case is to examine as to whether discretion vested in the authority i,e, a public functionary, in terms of Section 185, has been justly and fairly exercised or not. Per learned counsel, in spite of having referred to several identical and similar cases whereby the deviations from approved building plan were condoned and regularized by the respondent, the respondent, in total disregard of principle of equality and equal treatment to all the similarly placed persons, has meted out a discriminatory treatment to the appellant, therefore, did not exercise the discretion justly and fairly. Learned counsel further argued that a discretion vested in public functionary has to be transparent therefore it was incumbent upon the respondent to give valid and cogent reasons for not exercising such discretion in favour of the appellant. Per learned counsel, it was the duty of the respondent to show as to how the appellant's case was different and distinguishable from the cases of several other impugned constructions raised in the Cantonment area and under what circumstances the appellant has been singled out. In support of his contention, learned counsel has placed reliance on the following case-laws:
(1) Abid Hassan v. P.I.A.C. And others 2005 SCM R 25.
(2) State Life Insurance Corporation of Pakistan v. Director-General, Military Lands and Cantonments, Rawalpindi and 4 others 2005 SCM R 177.
(3) Amanullah Khan and others v. The Federal Government of Pakistan PLD 1990 SC 1092.
7. Conversely, learned counsel for the respondent has supported the impugned judgment and submitted that the appellant could not make out a case whereby the relief sought could be allowed to the appellant. It was argued by the learned counsel for the respondent that the contention of the appellant regarding discrimination is not supported by evidence as no particulars of the alleged similar cases whereby the impugned construction was regularized by the respondent have been given by the appellant. Learned counsel further argued that the cases referred and relied upon by the appellant were different and distinguishable and the authorities below have given reasons for not regularizing the impugned violations by the appellant. Per learned counsel, like is to.Be compared with like, whereas there can be hardly any legitimate expectation for the purpose of condonation of the violations in the impugned approved plan and construction. Learned counsel also referred to the prayer clause of the plaint and submitted that the same is defective and cannot be allowed. Per learned counsel, as per contents of the prayer the appellants have presumed that by simply submitting a Building Plan for approval or revised building plan seeking regularization would automatically be considered as approved. Per learned counsel, the appellant has shifted from his stand taken in the suit and has argued his case on different grounds in the appeal. Learned counsel while concluding his arguments has submitted that the decision taken by the Court in the case is based on sound reasoning and cannot be termed as discriminatory, whereas it intends to improve and regulate the construction in the city as per approved plan and bye-laws. Accordingly, it has been argued that the instant appeal is devoid of any merits hence liable to be dismissed.
8. Learned counsel for the appellant while exercising his right of rebuttal has briefly stated that this Court has the power and authority to mould the relief claimed by the parties and grant any other relief which this Hon'ble Court considers appropriate under, the facts and circumstances of the case. In this regard, learned counsel referred to the case of this Court reported as (Sharaf Faridi v.
Federation of Islamic Republic of Pakistan) PLD 1989 Kar.
404.
9. On a query of this Court as to availability of any rules, regularizations of Karachi Cantonment Board regulating the construction of buildings, approval of building plans and regularization of violations in deviation of the approved plan, both the learned counsel conceded that there are no such regularizations which govern the construction of buildings in the Cantonment area except the Building Bye-Laws of Cantonment Board. To another query of this Court about existence of any policy of the Cantonment Board, whereby certain parameters for the approval or regularization of the deviations of the building plan have been defined, to this query, learned counsel for the respondent frankly stated that there is no written policy of the Cantonment Board however, learned counsel submitted that the impugned decision of the Board in the case of appellant can be considered as policy decision of the Board.
10. We have heard both the learned counsel and perused the record as well as the impugned judgment passed by the learned Single Judge. Before we may proceed to examine the validity of the impugned judgment in the instant case, it would be appropriate, if we may examine the reasons prevailed upon the authorities below, while rejecting the revised regularization plan of the appellant. The revised plan seeking approval of deviation made by the appellant was rejected through letter dated 6-4-2000, wherein the following reasons were given.
"(i) The revised regularization plans are based on plot ration 1:8 instead of 1:6 indicating proposed construction up to Ground + 16 floors with double basement reserved for parking. The plot ration 1:8 does not conform to Building Bye Laws of Karachi Cantonment Board.
(ii) The building is yet under construction and not complete.
(iii) You have built 10'-0" vide arcade instead of 7`-6" wide towards Dawood Pota Road with unauthorized construction over the arcade for which notice under section 185 followed by notice under section 256 of the Cantonments Act, 1924 (II of 1924) vide No,KCB/221/EIL/99/3289 dated 4-11- 1999 and No,KCB/ 221EIL/99/3713 dated 9-12-1999 have already been issued.
(iv) The revised/regularization plans indicate construction over the two arcades from 1st to subsequent floor and part of stairs in Compulsory Open Space which cannot be allowed being in contravention to Building Bye Laws".
11. The appellant being aggrieved by such order, filed an appeal before the Director Military Lands & Cantonment, Karachi Region which appeal also met same result, as the same was rejected vide order dated 20-3-2002, the relevant part of which is reproduced as follows: "M/s Amin Chapal got a plan for the said shopping mall known as Chappal Navinta Mall approved from the Cantt Board on 5th March 1999 consisting of two basements, ground floor and 9 storeys.
According to the prosecution, keeping in view the culture of those times they made certain deviations from the sanctioned plan and submitted a revised plan incorporating these deviations for approval of the Board. They were prepared to pay composition fee/penalty for the deviations made. He also mentioned that such like deviations were earlier regularized by the Board in respect of other shopping malls in the Cantt. Area. He, therefore, pleaded for the regularization of these deviations as the Board instead of approving them had ordered for their demolition. The Reps of the Cantt. Board Mr. Rashid Ahmed, Overseer confirmed that the plan of the Navinta Chappal Shopping Mall was approved by the Board for two basements, ground floor plus 9 storeys on 24- 10-1998 with a total covered area of 2,25,630.00 Sq. Ft. However, the applicant deviated from the sanctioned plan, by making unauthorized construction in the compulsory open spaces measuring 30828.50 Sq. Ft. Thereby committing serious violations of the Cantt. Building' Bye Laws 15(1). The Cantonment Board, therefore, after considering the pros and cons of the case took a decision vide its Resolution No,04 dated 27-10-2001 ordering that the unauthorized construction in the compulsory open spaces be demolished instead of compounding it. The Board is competent to take such a decision which is in accordance with the provisions of Cantt. Act, 1924. Therefore, the decision of the Board is in line with the law. As far their quoting of examples of other such plazas where the Board had earlier resolved to regularize unauthorized construction, the undersigned is of the view that the Board was competent to do that, but such a course had generally encouraged massive deviations from the sanctioned plans which is not being appreciated. If the Board has now decided to up hold the sanctity of their building bye laws by refusing the case of the applicant, it has generally sent a message to the prospective buildings that no such violation of compulsory open space shall be allowed in the future in the Cantt. Areas which is a healthy sign for the development of Karachi Metropolis.
' After hearing both the parties, perusal of the approved and revised building plans and also perusal of the Cantt. Board Building Bye Laws 15(1) and relevant provision of the Cantonment Act, the undersigned has reached the conclusion that the Cantt. Board has acted according to law by not regularizing the encroachment made in the compulsory open space to uphold the sanctity of the Building Bye Laws. The appeal on this account is, therefore, rejected. As for the second part of their appeal regarding rejection of their revised plan for additional storeys from 9 to 16th floor, the applicant has based his claim on a verbal assurance given by the Cantt. Authorities and in view of a relaxed proposal for amending the building .Bye-laws of Karachi Cantt. No such proposal was finalized and the maximum covered area with a ratio of 1 to 6 allowed under the building bye-laws, has already been utilized by the builders and there is no provision under the bye laws of Cantt.
Board. Karachi to allow construction beyond this ratio. The plea of the applicant, therefore, holds no water, legal or otherwise. The rejection of revised plan for allowing construction from 9 to 16 floors by the Board is justified under the rules. This request of the applicant being beyond the provision of law. Cannot be entertained."
12. The learned Single Judge while dismissing the suit of the appellant has examined the relevant provision of Cantonments Act 1924 including sections 178-A, 179, 180, 181 and 185 as well as provisions of Building Bye-laws of the Cantonment Board including by laws Nos.12, 15, 20 and 136 as referred by the counsel for the parties and observed certain violation in the impugned construction and further held that the respondent under the relevant provisions of law have the discretion not to condone and regularize such deviation and violation in the approved building plan. It has been further held by the learned Single Judge that the appellant could not brought on record supporting material and the relevant documents whereby the appellant could establish his claim of regularization of the revised building plan. It has been further observed that no details whatsoever of the identical and the similar projects were given by the appellant for the purposes of comparison of those projects involving the deviations and regularization, therefore, it was held that since the appellant could not establish his claim with the positive evidence, therefore, he was not entitled to seek any relief under the circumstances.
13. We do not see an error in the findings of the learned Judge whereby it has been held that under the above referred provisions of Cantonments Act and the Building Bye-laws, the Cantonment Authority have the discretion either to condone/approve the deviation in the approved building plan or to decline the approval/regularization of such construction. However, we would like to examine as to whether such discretion vested in the Cantonment. Authority has been =exercised judiciously in a transparent manner and without any discrimination to the appellant under the facts and circumstances of this case. In this regard, the arguments of both the learned counsel can be summarized as under:--
(i) Whether in view of sections 184 and 185 of the Cantonments Act, 1924, the Cantonment Authorities have the power to condone and regularize any deviation in approved building plan by accepting composite fee?
(ii) Whether the case of the appellant seeking approval of deviations can be treated. At par , with the cases of other builders and buildings, where as per appellant, similar deviations were regularized by the Cantonment Board?
(iii) Whether in the case of appellant, the discretion vested in the Cantonment Authorities has been exercised in a judicious and transparent manner and no discriminatory treatment has been meted out to appellant'?
14. It will be appropriate to reproduce Sections 184 and 185 of Cantonments Act, as under:--
184. Illegal erection and re-erection.--Whoever begins, continues or completes the erection or re- erection of a building--
(a) without having given a valid notice as required by sections 179 and 180, or before the building has been sanctioned or is deemed to have been sanctioned, or
(b) without complying with any direction made under subsection (1) of section 181, or
(c) when sanction has been refused, or has ceased to be available, or has been suspended by the Competent Authority under clause (b) of subsection (1) of Section 52.
' Shall be punishable with fine which may extend to five hundred rupees.
185. Power to stop erection or re-erection or to demolish.--(1) A Board may, at any time, by notice in writing, direct the owner, lessee or occupier of any land in the cantonment to stop the erection or re-erection of a building in any case in which the Board considers that such erection or re- erection is an offence under section 184, and, may in any such case or in any other case in which the Board considers that the erection or re-erection of a building is an offence under section 184, within twelve months of the completion of such erection or re-erection in like manner direct the alteration or demolition, as it thinks necessary, of the building, or any part thereof, so erected or re- erected: ' Provided that the Board may, instead of requiring the alteration or demolition of any such building or par thereof, accept by way of composition such sum as it thinks reasonable: ' Provided further that the Board shall not, without the previous concurrence of the Competent Authority, accept any sum by way of composition under the foregoing proviso in respect of any building or land which is not under the management of the Board.
(2)------------------- ------------------- ------------------- On perusal of the provisions of sections 184 and 185 of Cantonments Act, 1924, it appears that the Cantonment Board has wide powers to condone and regularize any illegality in the construction or deviations in the approved building plan and accept composition fee instead.
15. Similar controversy appears to have been resolved by a Division Bench of this Court in the case of Sibte-Mujtaba Kazmi v. Cantonment Board reported as 2008 M LD 793 in the following manner: "Nevertheless, learned counsel for the respondent referred to sections 184 and 185 of the Cantonments Act, which conferred wide powers upon the Board and other authorities to condone any illegality in the construction and accept composition fee instead. It may also be added that sanctions for construction of buildings are to be obtained under Chapter XI of the Cantonments Act and the building bye-law made under section 186 cannot override statutory force. We, therefore, find no merits in the petition and dismiss the same."
16. In the case of State Life Insurance Corporation of Pakistan v. Director-General, Military Lands and Cantonments, Rawalpindi and 4 others reported as 2005 SCM R 177. The Hon'ble apex Court while examining the provisions of sections 179, 180, 181, 184 and 185 of the Cantonment Act, has held that when statute specifically requires a public functionary to act in a particular manner, it must act in that manner and the courts have all the powers to see as to whether it acted in that manner or not.
It was further held that reasonableness or otherwise of an act is a question of fact which at times requires to be decided on the basis of evidence but in certain cases even the evidence is not required.
17. On perusal of the provisions of Cantonments Act, it appears that there is no provision of law which prescribes the limits of regularization of deviations from approved building plan. It further appears that there is no regulation or policy of the Cantonment Board, which defines the nature and extent of the violations, which cannot be regularized by accepting composition fee. Though equity cannot be claimed, while seeking condonation or regularization of the deviations in the approved building plan, however, equal treatment with comparable and similar cases can be claimed as a matter of right.
18. In the instant case it appears that the appellant has alleged discrimination by respondents among the similar species i,e, Commercial Projects and has contended that the respondent during the relevant period, have regularized the deviations from approved building plan to other similarly placed projects. It further appears that while alleging the discrimination: by the respondent the appellant has referred to following projects in which according to appellant the unauthorized construction was regularized by the respondent.
(a) Jaddah Center
(b) Naz Plaza
(c) Jinnah Avenue
(d) International Center
(e) Cambridge Luxury Apartments
(f) Panorama Center
(g) APWA Center; and
(h) Elphi Gulleria.
19. From perusal of the reasons indicated by the Cantonment Board as well as the Director Military Lands and Cantonment Karachi Region Karachi in their orders whereby the claim of regularization of the appellant was rejected, it appears that no provision of law or the bye-law has been referred according to which the nature of the deviations made by the appellant in the approved plan could not be regularized by accepting composition fee. Similarly, without denying the assertion of the appellant about regularization of other similar projects, both the authorities below have failed to distinguish the case of the appellant and have mostly based rejection by referring to certain deviations as stipulated in bye-law 15 of the Cantonment Board. As regards regularization of unauthorized construction of the similar projects as pointed out by the appellant, the Director Military Lands & Cantonment Karachi Region Karachi has conceded to such assertion, however declined to concede to the request of the appellant in the following manner: "As far their quoting, of examples of other such plazas where the Board had earlier resolved to regularize unauthorized construction, the undersigned is of the view that the Board was competent to do that, but such a course had generally encouraged massive deviations from the sanctioned plans which is not being appreciated. If the Board has now decided to up hold the sanctity of their building bye laws by refusing the case of the applicant, it has generally sent a message to the prospective buildings that no such violation of compulsory open space shall be allowed in the future in the Cantt areas which is a healthy sign for the development of Karachi Metropolis."
20. From perusal of reasoning of the Director Military Lands & Cantonment Karachi Region, Karachi, it appears that though it has been conceded that similar deviations were regularized by the Board while exercising their discretion vested in terms of sections 184 and 185 of the Cantonments Act, however, the claim of the appellant has been rejected by making him an example, to discourage the prospective buildings from violating approved building plan in future. We are not inclined to subscribe to such reasoning whereby discretion vested in law has been exercised in a fanciful and arbitrary manner whereby the appellant has been singled out without any advance intimation or Policy. It is surprising to note that there is no law, bye-law or a policy of the Cantonment Board, which defines the parameters and the extent of deviations in approved plan, which could not be regularized in terms of sections 184 and 185 of the Cantonments Act, which otherwise gives vast powers to the Cantonment Board to regularize any illegal constructions and deviations by accepting composition fee.
21. Though this court would not support any violation of law, rules, bye-law, regulating the construction, approval and regularization of deviation in approved building plan, however. The right of equal treatment of similarly placed buildings, as guaranteed by the constitution, cannot be denied. All the public functionaries, while performing their duties and exercising the discretion vested in them by law, are required to perform such duties and exercise such discretion in a judicious and transparent manner. Any discrimination or mala fide on the part of a public functionary renders all the orders passed and proceedings so conducted as illegal and as of no legal effect. Reference in this regard can be made to case of Saleem Akhtar Rajput and another v.
Karachi Metropolitan Corporation and 2 others reported as 1994 CLC 211, wherein a Division Bench of this Court while examining the propriety of discretion vested in public functionary held: "It has come on record that the appropriate authorities allowed additional floors on the plots mentioned in para 12 of the memo of petition. This fact is not denied by the respondent No,1 in their counter-affidavit. On the contrary, they themselves annexed a statement as Annexure "A" to the counter-affidavit. It will be apparent that the plots including the plot in question are situated on.
Main Clifton Road. It is well settled that equal protection of law does not envisage that every plot is to be treated alike in all circumstances, but it contemplates that plots similarly situated or similarly placed are to be treated alike, "
22. In the case of I.A. Sherwani and others v. Government of Pakistan and others reported as 1991 SCM R 1041 the following principles have been laid down by the Hon'ble Supreme Court, while examining the scope of Article 25 of the Constitution of Pakistan, 1973,
(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;
(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings and persons accused of heinous crimes;
(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;
(vi) that equal protection of law means that all persons equally placed be. Treated alike both in privileges conferred and liabilities imposed;
(vii) that in order to make a classification reasonable, it should be based--
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
(b) that the differential must have rational nexus to the object sought to be achieved by such classification.
' The above principles will have to be constantly borne in mind by the Court when it is called upon to adjudge an order or statute or notification affected as discriminatory and violative of the equal protection."
23. Chapter XI of the Cantonments Act, 1924, relates to control over buildings, boundaries, streets etc. And contains section 178-A to section 197, which provide for sanction, compensation, approval and condonation of deviations in the approved building plan etc. It also includes powers to make bye-laws in terms of section 186 of the Cantonments Act. From perusal of sections 184 and 185, it appears that Cantonment Board and the Authorities have been given vast powers to condone and approve the deviations in the approved building plan by accepting composition fee, as held by a Division Bench of this Court in the case of Sibte-Mujtaba Kazmi v. Cantonment Board reported as 2008 M LD 793. It further appears that Building Bye-Laws 1983 of Karachi Cantonment framed under Section 186 of the Cantonments Act, 1924, published, approved and confirmed by the Federal Government as required by subsection (1) of section 284 of the Cantonments Act, regulate the erection and re-erection of, or addition and alteration to buildings in the Karachi Cantonment.
From perusal of Cantonments Act, 1924 and Building Bye-Laws 1983, it further transpired that there are. Hardly any provisions in the subject bye-laws which define the nature and the extent of the deviations in the approved building plan, which could not be regularized in terms of the Cantonments Act and the Building Bye-Law. It further appears that there is no statutory bar upon the discretion vested in the Board and the Officers of the Cantonment, whereby the extent and the nature of the violations from the approved building plan could not be condoned or regularized after accepting composition fee. This aspect of the matter requires attention of the Cantonment Authority, who shall take step to bring necessary amendments in the existing law and Bye-Laws of the Cantonment to properly regulate the construction in the Cantonment Area strictly in accordance with law, rules and regulations and further to declare some specific policy regulating the construction activity in the Cantonment. Area by defining the nature and extent of violations and deviations which could not be regularized or condoned on payment of composition fee.
However, since we are not examining the propriety of the Cantonments Act, 1924 and the building bye-law 1983, we would refrain from issuing any directions at this stage to the respondents in this regard.
24. Keeping in view hereinabove facts and non-availability of statutory provision, rules or bye-laws, restricting the condonation approval and illegal construction & deviation from approved building plan in the Cantonments Act and the Building Bye-Laws, we are of the view that the appellant has made out a case of discriminatory treatment given by the Cantonment Board as well as Director Military Lands & Cantonment Karachi Region Karachi, whereby the appellant's claim of regularization of deviations from approved plan has been declined. Under the circumstances, we would remand the case back to the respondent i,e, Director Military Lands & Cantonment Karachi Region, Karachi with a direction to reconsider the case of the appellant for approval in accordance with law and bye-laws etc., keeping in view the treatment meted out to similar buildings, after providing complete opportunity to appellant to present his case and after assigning cogent reasons for such decision.
' The instant High Court Appeal is disposed of in the above terms.