MUNIB AKHTAR, J.---C.M.A. 1509 of 2009, filed by the plaintiff, is an application for interim injunctive relief. On this application, ad interim status quo orders were made on 23-2-2009. C.M.A. 2904 of 2011 has been moved by the defendant No, 1, the main contesting defendant, for recall of the said orders. These are the applications that fall for determination, and they arise in the following circumstances.
2., The plaintiff is resident in a property directly across the street from the property of defendant No, 1, the latter being Plot No, JM 1034 (Old 86), Muslimabad Cooperative Housing Society, Jamshed Quarters, Karachi ("suit property"). The grievance of the plaintiff is that the defendant No, 1 is raising construction on the suit property in flagrant breach of the relevant law and regulations, being principally the Karachi Building and Town Planning Regulations, 2002 ("2002 Regulations") and that the building control authority has failed to perform its statutory duties in this regard. (The authority is now known as "Sindh Building Control Authority", and is hereinafter referred to as "the Authority".)
It is averred that on account of the unlawful and impermissible construction, the plaintiff (and other residents of the neighborhood) have suffered and will suffer nuisance and other inconvenience, which will irreparably damage and diminish the enjoyment of their respective residences and properties. Interim relief is sought accordingly. The defendant No, 1 on the other hand avers that the construction on the suit propertyis entirely in accordance with law and -in any case has since been regularized by the Authority in exercise of powers duly vested in it. It is averred that the ad interim orders are interfering with the lawful use of the suit property by the defendant No, 1 and it is prayed that the said orders be recalled and the plaintiff's application be dismissed.
The case, as argued by learned counsel for the contesting parties, turned on whether or not there had been a violation of the 2002 Regulations, and it is on this basis that I am called upon to decide the two applications.
3. Learned counsel for the plaintiff submitted that there had been a number of violations of the 2002 Regulations. He contended that the plan as submitted for construction, and approved, was for a bungalow but the defendant No, 1 had instead raised as many as six town houses on the suit property, although the property had not been sub-divided. He submitted that the regulations in relation to compulsory open spaces and provision of car parking had been violated. Learned counsel placed reliance on an inspection carried out by the Nazir. As commissioner and the. Report produced by him to submit that the gross violations of the 2002 Regulations were apparent and undeniable. Learned counsel also contended that the defendant No, 1 was a serial offender inasmuch as after construction had begun, the Authority had repeatedly issued notices for violation of the, approved plan. And had, on two occasions, demolished the construction (or part thereof) and there was even on the date of the institution of the suit, a third such notice pending against the defendant No, 1 . For these submissions he placed reliance on the Authority's written statement, in which these facts have been stated. Learned counsel further submitted that around or after the institution of the suit (on 18-2-2009), the defendant No, 1 had applied for regularization of the violations of the 2002 Regulations. These violations had been regularized by the Authority by approval dated 4-5-2009, which was placed on record by the concerned Deputy Controller, along with the building plan as regularized in terms of a compliance report. The plaintiff had thereupon moved an application to amend the plaint (C.M.A. 5479/2009) which was allowed by order dated 25-5-2011. In the amended plaint, relief has also been sought against the regularization order made by the Authority. Learned counsel submitted that the Authority had no powers to regularize the violations complained against or in any case had exceeded those powers or wrongly exercised them, and that therefore the regularization of 4-5-2009 was bad in law. He submitted that the plaintiff was entitled to suitable injunctive relief.
4. Learned counsel for the defendant No, 1 strongly opposed the grant of any relief to the plaintiff.
He submitted that the original building plan had been approved on or about 13-9-2007 and after the construction had been completed the completion plan had been approved by the Authority on 4-5-2009 and violations, if any (which was denied), had been regularized. Thus, his case was that the plaintiff had no present grievance and the application for interim relief merited dismissal on this ground alone. Learned counsel, referred to the relevant provisions of the Sindh Building Control Ordinance; 1979 ("the Ordinance") and the 2002 Regulations to contend that there had been no violations as alleged. The requirements regarding compulsory open spaces and car parking provision had been fully complied with. Learned counsel submitted that the suit property was not a rectangular plot but was odd-shaped and for plots of the latter type, there were special provisions in the 2002 Regulations. He therefore contended that the regulations relied upon by learned counsel for the plaintiff were (at least in part) not applicable at all. Learned counsel relied on Ardeshir'Cowasjee and others v. Karachi Building Control-Authority and others 1999 SCMR 2883, Citizen Welfare Society and another v. KBCA and another 2009 YLR 215. Umatullah Province of Sindh and others PLD 2010 Karachi 236 (DB) and Printek (Pvt.) Ltd. And others v. Shahid Nahi Malik and others 2011 YLR 2941 (SHC; DB) in support of his submissions..
5. I have heard learned counsel as above, examined the record with assistance and considered the relevant statutory provisions and case-law relied upon. The first point to note is that the Authority, in its written statement filed on 13-4-2009 through Syed Ali Mehdi Kazmi (Deputy Controller, Jamshed Town), has undoubtedly stated that on two occasions (25-7-2008 and 16-10-2008) the construction on the suit property had to be demolished (after due notice to the defendant No,1) since it was in violation of the approved plan. It is also stated in the written statement that approval had been given for the construction of three town houses on the suit property, but the defendant No,1 repeatedly violated the approval, which led to the demolition actions. In this regard, a third notice dated 16-2-2009 was also issued. However, within a few weeks of filing this written statement, the Authority, acting through the same Deputy Controller, submitted a compliance report before the Court (dated 14-5-2009) in which it was stated that on payment of the relevant fees the violations bad been regularized and thus, in effect, the defendant No,1 had been granted the necessary permission for the construction of as many as six town houses on the suit property.
The regularization order (of 4-5-2009) and the completion/ regularization plan were annexed to the report. Thus, at least prima facie, the Authority seems, in fairly short order; to have done a complete turnabout with regard to its stance on the construction carried out on the suit property.
6. As noted above, the case essentially turns on whether or not there has been a violation of the 2002 Regulations. Now, these regulations replaced and superseded the Karachi Building and Town Planning Regulations, 1979 ("1979 Regulations"). I will focus attention on the issue of regularization since if, as contended (without prejudice) by learned counsel for the defendant No, 1, the Authority's order dated 4-5-2009 is a valid exercise of statutory powers, then the plaintiffs allegations and objections may well cease to be of any relevance. However, if learned counsel for the plaintiff is correct, and the purported regularization is a nullity in law or is otherwise an excess or improper exercise of statutory powers, then the cover sought to be given thereby to the alleged violations would not be available and that may well entitle the plaintiff to some sort of interim relief.
7. The power to regularize is contained in Regulation 3-2.20 of the 2002 Regulations, and a similar power to compound was conferred by Regulation 16 of the 1979 Regulations. There was some issue with regard to whether the power to compound an offence (which was said to arise under section 19 of the Ordinance) was the same as, or could be regarded as conferring a power to, regularize, and also whether the latter power vested in the Authority in terms of section 21-A. However, 'as will be seen shortly, this distinction stands obviated by the observations of the Supreme Court in Ardeshir Cowasjee and others v. Karachi Building Control Authority and others 1999 SCMR 2883.
(This case is usually referred to as the 'Costa Livina case" and is so cited hereinafter.) The, relevant portions of the two regulations are for convenience set out in tabular form as follows (emphasis supplied); 1979 Regulations: Regulation 16 2002 Regulations: Regulation 3-2.20
(1) If the building works commenced or carried are out contrary to the provisions of these regulations the concerned, authority shall,(a) by written notice require the person who is carrying out such building works forthwith to stop all work thereupon;(b) by written notice require the person who is carrying out or has carried out such building works on or before such day as shall be specified in such notice by a statement in writing subscribed by him or by an agent duly authorized by him and addressed to the concerned authority to show sufficient cause why such building works or such part thereof shall not be removed or altered to comply with these regulations;(c) require the said person on such day at such time and place as shall be specified I such notice to attend personally or through an agent duly authorized by him and show sufficient cause why such building works or part thereof shall not be removed or altered.(2) If such person fails to show sufficient cause to the satisfaction of the Concerned3.2.20.1 If the building works are commenced or carried out contrary to the provisions of these regulations the authority shall,(a) by written notice require the person who is carrying out such building works forthwith to stop all works;(b) by written notice require the person- who is carrying out or has carried out such building works on or before such day as shall be specified, in such notice by a statement in writing given by him or by an agent duly authorized by him and addressed to the Authority to show sufficient cause why such building works or such part thereof shall not be removed or altered to comply with these regulations;(c) require the said person on such day at such time and place as shall be specified in such notice to attend personally or through an agent duly authorized by him and show sufficient cause why such building works or part thereof should not be removed or altered.3-2.20.2 If such person fails to show sufficient cause to the satisfaction of the concerned Authority why such building works or part authority why such building works or part thereof shall not be remove or altered the concerned Authority may take the following actions:(a) require the person who has carried out the works against the provisions of these regulations or-any other statute, to demolish the whole building -or part thereof; OR(b) to alter the works so as to bring it into conformity with these regulations; OR(c) compound the offence after realization of composition fee on the merits of the case, provided that no offence shall be compounded if...thereof should not be removed or altered, the Karachi Building Control Authority may take the following actions(a) -require the person who has carried out the works against the provisions of these regulations of any other statute, to demolish the whole building or part thereof; OR(b) to alter the works so as to bring it into conformity with these regulations; OR(c) regularize the violations in the existing structure after realization of regularization fee as per Table I & II, depends on the nature and merits of the case, provided that no violation shall be regularized------..
8. As is apparent, there is a great deal that is common between the previous and present regulations. There are also however, certain important differences, which are considered below.
The key provisions are Regulation 16(2)(c) and Regulation 3-2.20.2(c) respectively. The Previous regulation spoke of "compounding" the "offence", whereas the A present one permits the "regularization" of "violations". In the present context, these words carry the same meaning. In both cases, there are certain "offences" or "violations" (contained, in each case, in the proviso at the end, but not reproduced above) which could not be "compounded" or cannot be "regularized". In the previous regulation, the proviso had six such clauses, while the proviso in-the-present regulation has nine such clauses. The situations covered by the respective clauses thus constitute a statutory bar or limit which the Authority could not and cannot cross. Any purported regularization that comes within the scope of any of the clauses would therefore be beyond the jurisdiction of the Authority and in excess. Of itsstatutory powers. Secondly, it is to be noted that the power to regularize is discretionary. It is, of course well settled by innumerable decisions of the Supreme Court and the High Court's how statutory discretion is to be exercised, and obviously the power conferred by the previous and present regulations was and is so limited, controlled and channelized.
9. The. Supreme Court had occasion to consider the power to compound under the 1979 Regulations in the Costa Livina case and certain earlier decisions. The Costa Livina case was a decision by a five-member Bench that had to resolve certain differences between two earlier three-member Bench decisions, Abdul Razzak v. Karachi Building Control Authority and others PLD 1994 SC 512 and Multiline Associates v. Ardeshir Cowasjee and others PLD .1995 SC 423; 1995 SCMR
362. After consideringthe matter, the five member Bench overruled Multiline Associates to the extent of its inconsistency with Abdul Razzak (at pg.2917) and expressly approved the rule laid down in the latter decision. That rule, as presently relevant, was stated as follows in Abdul Razzak: "We may observe that the discretion given to the Authority under section 19 of the Ordinance or under Regulations Nos.20 and 25 is subject to the well-settled principle of legal jurisprudence that discretion is to be exercised fairly and reasonably and not at the cost or prejudice of third parties.
We may also point out that there is marked distinction between a criminal liability under section 19 of the Ordinance and a civil liability under the Regulations to rectify irregularity/breaches. The Authority may compound criminal liability but it cannot regularise a breach of the Regulations which is of the nature which has changed the complexion or character of the structure, which was originally intended to be erected or of the plot. In such cases, it can be said that the Authority has no discretion in fact and law. The plot in dispute was intended to have residential bungalow, it was not earmarked as flatssite." (emphasis supplied; PLD 1994 SC at pg. 526; reproduced in the Costa Livina case at pg. 2912).
In the Costa Livina case itself, it was observed as follows (pg. 2916); "The power to regularise contained in the Ordinance and the Regulations is intended and designed to be exercised when irregularity is of the nature which does not change the complexion or character of the originally proposed construction. The Government or the Authority under the Ordinance does not enjoy unbridled or unfettered power to compound each and every breach of the Regulations. The Regulations should be applied for the benefit of the public and not for favouring an individual." (emphasis supplied)
It may be noted that in the passage last reproduced, the Supreme Court has used both words, "regularize" and "compound", in the same context, which in my view indicates that as presently relevant, these words are to be used and understood interchangeably. Secondly, in the same passage, the reference is to the complexion or character of the "originally proposed construction", whereas in: Abdul Razzak (in the passage reproduced above) there is also a reference to the "plot".
In my respectful view, by this apparent omission, the Supreme Court did not intend in the Costa Livina case to narrow the scope of what was said in Abdul Razzak since it emphatically approved the latter case in all respects and specifically overruled anything to the contrary that may have been said in Multiline Associates.
10. The similarity between the power to compound/regularize under the 1979 Regulations and the 2002 Regulations has already been noted. It therefore necessarily follows that what the Supreme Court said in relation to the limits of the discretion to compound/regularize under the previous regulations applies equally under the 2002 Regulations. In other words, the discretionary power of the Authority to regularize under Regulation 3-2.20 is limited in two ways. Firstly, there is the statutory bar already noted above. If a particular case comes within the scope of any of the nine clauses of the proviso to Regulation 3-2.20.2(c), the Authority has no power to regularize. Secondly, if the breach is of such a nature that it changes the character or complexion of what was originally intended to be erected, or of the plot, then also the Authority has no power to regularize. Any purported regularization that is inconsistent with either of these limitations is beyond the jurisdiction of the Authority and in excess of the statutory powers conferred upon it.
11. Before I turn to consider the specific facts of the present case, it is necessary to refer to certain definitions contained in the 2002 Regulations. These are as follows: "2-65. "House/Bungalow" means an independent residential building for the use of people, a family/families having at least one habitable room with a kitchen, a bath, and a toilet.
2-107. "Residential Building" means building constructed for residential purposes. e.g. Bungalow, town house, fiats and such other buildings."
12. The first, and in many ways most important, point in the present case is that the building plan submitted by the defendant No, 1 for approval for construction, and the completion plan as regularized by the Authority was ostensibly for a bungalow. This is absolutely clear from the record.
All the plans submitted (e.g., the "proposed plan" as originally submitted and the "regularization/completion plan" as finally confirmed) are specifically and expressly in relation to a "bungalow". Now this, in my view, raises a fundamental and serious question: if building approval was sought and granted for a bungalow, and in the end regularization and completion was also accorded to and for a bungalow, how is it that the ground reality is that there are six town houses on the suit property? How, in other words, has a bungalow metamorphosed into six town houses?
Can, or do, six town houses equal one bungalow? As noted above, the Authority in its written statement has said that the approval was for three town houses. Yet, the plan submitted always and without fail referred to a bungalow. In ordinary usage, a bungalow and a town house are certainly not the same thing. I appreciate that descriptions and categories of "houses" can be somewhat elastic and one type may elide into or overlap with another. However, a bungalow and a town house do appear to be distinct and different types of housing. For example, the Concise Oxford Dictionary (8th ed.; 1990) offers the following meanings: "Bungalow: a one-storeyed house." (pg. 148)
"Town house: 1. a town residence esp. Of a person with a house in the country.
2. a terrace house, esp. Of a stylish modern type.
3. a house in a planned group in a town." (pg. 1291)
The fact that the two terms have different connotations is also apparent from Regulation 2-107, which differentiates between different types of residential buildings, and separately identifies a bungalow and a town house. The definition in Regulation 2-65 at first sight may appear to be somewhat ambiguous. A bungalow and a town house are of course both residential buildings.
Each, in a generic sense, is a house (which could of course, be true even of a flat or apartment).
However, the difference, under the Regulations, appears to lie in that a "house/bungalow" is "independent". The "independent" nature of the building in the context of the 2002 Regulations means that it is the sole (or at the very least the principal) residential building on a given plot. For example. It may be apt to describe a residential building on a 2000 square yards plot as a "bungalow". If however, that* same plot is subdivided into four 500 square yard plots, then it maybe more appropriate to describe a residential building constructed on each as a "house", i,e, it may well be inapt to describe any as a bungalow. It is in this sense that "house" and "bungalow" are defined together in Regulation 2-65, and each is required to be "independent": one plot, one "house/bungalow". Town houses on the other hand would appear to be a group (two or more) of residential buildings constructed on the same plot. Being on the same plot, they are not "independent", and this would be so even if the plot is internally partitioned and the structure of each town house is physically separate from the others. Separateness and independence are not the same things in the context of the building regulations. As long as the plot has not been officially subdivided, what could otherwise have been "houses" (on each sub-divided plot) would merely be town houses (even if the same patches or areas of the undivided plot are involved).
13. I now turn to address the questions posed in the last preceding para, and begin by asking another series of questions. If at all it was permissible to construct town houses on the suit property, why does not the record say so? Why was building permission not sought (and granted) on the basis of a plan that referred to town houses and not a bungalow? Most importantly, why did the Authority not regularize and grant approval for a completion plan that expressly and categorically referred to town houses? To these questions, I have received no satisfactory answer at all. My concern is all the greater when, as already noted above; the Authorityhas admitted in its written statement that it knew from inception that it was town houses that were intended to be constructed on the suit property and not a bungalow. Why was a charade being played? Why was (if I may put it so) a spade not being called a spade? I am here reminded of a well known American adage: if it looks like a duck, walks like a duck and, sounds like a duck, it probably is a duck. But what if "it" displays all the features of a duck (and there be initially three and later six of them) and yet people, especially those in authority who should know better, persist in calling it one of something else? Should that not cause questions to be asked by any reasonable person? In my view, it certainly should. In the present context, the only plausible answer is that knowingly and deliberately, an attempt was made to alter the character and complexion of the plot. Without obtaining the necessary approvals and permissions, multiple residential buildings are being raised on the suit property when it only allows for the construction of one. The entire exercise was tainted from the beginning. Everyone knew that only a "house/bungalow" could be constructed on the suit property. Everyone knew that permission was sought instead for town houses. The Authority purported to "approve" a bungalow, when it knew that it was nothing such but was in fact three town houses. Later, it purported to regularize and grant completion again for a bungalow, while knowing fully that it was only town houses that had been constructed and their number had, in fact, now jumped to six. In my view, prima facie, this was a clear violation of the rule enunciated by the Supreme Court in Abdul Razzak and reaffirmed so Strongly in the Costa Livina case. The Authority had not the discretion to regularize any change or alteration in the complexion or character of the plot. The approval purportedly accorded by order dated 4-5-2009 sought to achieve precisely this result and was therefore, prima facie, a nullity. (Before proceeding further, and by way of an aside, I may note, to reassure purists who might otherwise disapprove of the use of colloquialisms, that the adage deployed by me has been used many times in American cases- including US Courts of Appeals, as a simple search on Google Scholar will attest.)
14. Learned counsel for the defendant No, 1 relied on Citizen Welfare Society and another v. KBCA and another 2009 YLR 215. In this case, the plot in question was a commercial one, on which the builder had raised a multistorey building. However, the building as constructed had four floors (the seventh to the tenth) more than the number for which approval had been accorded. The learned Division Bench held that the additional floors could be regularized. The Costa Livina case was cited before the Bench, but it was held, in effect, that the rule laid down therein was not violated as neither the complexion nor the character of the construction or the plot had been altered. After all, it was a commercial plot on which a multistorey building could be raised and such approval had been accorded. The learned Division Bench also noted that there were many buildings in the vicinity with many more floors. In my view, and with respect, the cited case does not apply because I have concluded that in the present case the complexion or character of the plot has been altered and that too, knowingly and deliberately. Furthermore, the scope of the ratio of this decision needs to be carefully kept in mind. One of the nine clauses of the proviso to Regulation 3-2.20.2(c) states as follows: "(v) If the building works or part thereof exceed the maximum permissible height and number of storeys".
It will be recalled that a matter that comes within any of the clauses of the proviso cannot be regularized; this is a statutory bar. With respect therefore, the ratio of the cited case cannot extend to a situation to which clause (v) applies, even if the construction in question does not conflict with the rule laid down in the Costa Livina case.
15. Let me however, assume that the above conclusions arrived at by me are incorrect. I proceed therefore to consider the facts and circumstances of the present case on the basis that the construction and regularization of the six town houses did not conflict with the rule laid down in the Costa Livina case. In other words, I assume that the initial permission was sought and accorded, and regularization finally granted, for town houses. Was the regularization nonetheless in violation of law? In this context, an important difference between Regulation 3-2.20.2(c) of the present regulations, and Regulation 16(2)(c) of the previous regulations must be noted (see para 7 above).
The latter allowed the Authority to "compound the offence after realization of composition fee".
However, the present regulation allows the Authority "to regularize the violations in the existing structure after realization of regularization fee as per Table I & II". Now, tables I and II are in essentially the same form, the difference being that the first is titled "residential" while the second bears the heading "commercial/marketed projects", with the scale of fees being double that of the former. What is important for present purposes is that the tables not merely set out the fees payable; they also identify what it is that can be regularized. In other words, the scope of Regulation 16(2)(c) appears to have been broader than that of Regulation 3-2.20.2(c). The previous regulation allowed any offence to D be compounded subject to the payment of the requisite fee.
The present regulation only allows for a limited category of violations to be regularized against payment of the fee prescribed for each. The categories specified in the tables are as follows: "a. Violation of compulsory open space b. Violation of open space c. Balcony Projection, Car Porch and structure of identical nature in compulsory open space
(d) Starting construction prior to approval of Building Plan
(e) Occupying the premises prior to obtaining completion certificate (for each floor) f. Regularization of floor constructed without approved plan (each floor) g Not followed the approved Plan"
Before proceeding further, I may note that clause (a), for reasons that need not be considered in detail, may be regarded as anomalous. Clause (f) allows for the regularization that was permitted by the learned Division Bench in the Citizen Welfare Society case (supra), subject of course to the statutory limitation that clause (v) of the proviso should not be violated. However, there does not appear to be any provision in table I or II as would allow for the regularization of the sort now under consideration, i,e, permission to construct and complete six town houses instead of three. The only possible clause under which regularization could have been granted is the last one. However, in my view, it would be an impermissible interpretation of clause (g) to read it as allowing any and every sort of deviation from or violation of the approved plan. If it were such a catchall, there would be no need for clauses (a), (b), (c) or (t). Indeed, clause (g) would on such interpretation serve as virtually an open-ended invitation and incentive for a builder to deliberately have any sort of plan "approved" and then knowingly deviate from it to the maximum extent, all the while secure in the knowledge that it could all be regularized on the basis that the approved plan was not "followed".
The fee payable for a regularization covered by clause (g) is (or was), incidentally, Rs,4/- per square foot, which is a pittance compared to the returns that a builder could earn if any and every kind of `deviation could be regularized under this provision. Reference in this context can be made to Muhammad Usman v. KBCA 2000 CLC 925 (SHC; DB), a case cited by learned counsel for the plaintiff, where it was observed as follows (emphasis supplied): "7. Regularization, in such matters, is ex post facto condonation in the cases where the deviations are of such nature which (K.B.C.A. Could have approved as a part of the original plan under the Regulations, and one cannot deviate from the approved plan deliberately with a view to get it regularised afterwards on payment of penalty. The learned Single Judge has very rightly made the following observations in the impugned order, and we are inclined to agree with the view:- `The concept of regularisation of deviation from the approved, plan is; I must admit, quite unpalatable to me. One might ask what is the purpose of making a rule or regulation which can be deviated from and such deviation can be compounded upon payment of penalty. Surely this would be contradiction in terms for rules are made to be obeyed and not to be deviated from. If such be the case then that would tantamount to allowing premium on deviation from the rules and, thus, those who choose to obey the rules would suffer and would be at a disadvantage as compared to those who choose not to obey the rules."
In the present case, the record clearly indicates that the defendant No, 1 sought from the very beginning to deviate from the approved plan. He repeatedly violated its terms and twice the construction had to be demolished. Prima facie, there was a deliberate and wilful attempt to bypass the law, and it may well have been part of the scheme to construct the six town houses and then get them regularized. Furthermore, it is not all clear to me how doubling the number of town houses could at all be regarded as simply a "violation in the existing structure", which is all that can be regularized. In my view therefore, the doubling of the number of town houses in the present case from three to six was not something that came within the scope of .Regulation 3-2.20.2(c) and hence could be regularized in terms thereof.
16. Let me however, again assume that the above conclusions are incorrect. I therefore proceed further to now consider the possibility that notwithstanding the foregoing, the increase in the number of town houses could, somehow, come within the scope of table I or II. Even in this situation, regularization would not be a matter of right. As already noted the exercise of these powers is discretionary under the present regulations and was so under the previous ones. This is also a point that was expressly noted by the Supreme Court in the Costa Livina and Abdul Razzak cases. The present Regulation 3-2.20.2(c) uses the words "depends on the nature and merits of the case".
Leaving aside the somewhat faulty drafting, the intent is clear. Even if the Authority has a general policy of regularizing breaches of "violations in the existing structure", it must nonetheless consider whether the facts and circumstances of a given case, are so egregious that the discretion ought not to be exercised. In my view, prima facie, the present case is one such, and this is apparent from what the Authority itself has to say. The relevant facts as stated in its written statement have already been noted above (see para 5 above). Prima facie, it appears that from the very beginning the defendant No, 1 was intent on violating the "approved" plan; and bent upon constructing six town houses instead of three on the suit property. Twice the Authority demolished the construction under way, and up to the filing of its written statement, it had a third notice in this regard pending against the defendant No,
1. Within a few weeks however, it did a complete volte face and regularized the six town houses. Is this a proper exercise of discretionary powers? In my view, prima facie not. The Authority was pursuing the violations committed by the defendant No, 1 with full vigor and twice applied the ultimate sanction in its arsenal, i,e,, demolition. What happened in the intervening period between 8-4-2009 (the date on which the concerned Deputy Controller signed and deposed the written statement), and 4-5-2009 when regularization was accorded (by the same Deputy Controller)? On the face of the record, apparently nothing.. Why the dramatic and sudden turnabout? On the face of the record, for no apparent reason. It is interesting to note that in the written statement, the Authority has referred to the construction on the suit property as "town houses". In the compliance report dated 14-5-2009 submitted before the Court (by the same Deputy Controller) however, the references are to "bungalow/house" (and of course, as already noted, the approved "regularization/completion" plan is for a "bungalow"). These shifts in terminology are neither accidental nor innocuous. They are deliberate and carefully modulated.
The crucial question that remains unanswered however is what brought about the change? To this there is no apparent answer and certainly not one that would withstand judicial scrutiny. It is also to be noted that in the completion/regularization plan; each of the six town houses is shown as being separate from the others. It also appears. That the defendant No,1 has resorted to internal partitioning of the suit property, without having it formally subdivided. Thus, boundary walls have been so raised as to partition the suit property into three areas, with two town houses in each. The intent is obvious: it is to show the town houses as "independent" residential buildings and hence within the definition of Regulation 2-65 considered above (see paras 11-12 above). However, by such sleight of hand the town houses cannot simply be labelled as "house/bungalow" and regularization accorded by the Authority. In my view, thediscretion purportedly exercised in the present ease by the Authority does not come up to the required standard and is seriously open to doubt and question.
17. As is clear from the foregoing analysis and discussion, I have examined the issues before me from a variety of angles in order to determine the legality of what has been done and what was going on at the suit property. I am satisfied prima facie that howsoever viewed, the case put forward by the defendant No, 1 is wanting. It appears to me that the entire construction activity carried out was in conflict with the rule laid down by the Supreme Court in the Costa Livina case inasmuch as it was an attempt to change the complexion and character of the suit property. Even if it was not, the purported regularization of ten violations committed was outside the scope of the Authority's powers under Regulation 3-2.20.2(c). Even if the matter did come within the scope of the Authority's powers, the exercise thereof is discretionary and I am not at all satisfied that the discretion has been properly exercised in the present case.
18. On the view that I take of the matter, it is not necessary for me to consider in detail the various submissions by learned counsel with regard to those regulations as apply specifically in relation to the violations in question. One point however, requires comment. The 2002 Regulations have been amended from time to time. In almost all cases, the amendments were published in the official gazette many months (and in some cases even years) after being made. A question arose as to when the amendments took effect, i,e,, immediately on being made or upon being gazetted? Both learned counsel made submissions on this point and cited case law. Learned counsel for defendant No,1 referred to Umatullah v. Province of Sindh and others PLD 2010 Karachi 236 (DB) in which this point appears to have been settled. It was certainly so regarded in Printek (Pvt) Ltd. And others v. Shahid Nabi Malik and others 2011 YLR 2941 (SHC; DB) at ,paras 34-35, another decision cited for the defendant No,
1. Learned counsel relied on the latter decision to contend that the benefit of certain amendments, gazetted in 2010 and/or 2011, would be available and applicable to the case of the defendant No,1 as those amendments were beneficial, remedial and/or curative in nature, and this would be so even if they had not been gazetted. In other words, those amendments would apply from the date as made. The relevant extract from Printek relied upon is as follows: "34. ... 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 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 nobody'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...." (emphasis supplied)
Reference should also be made to para. 36 of the cited decision: "36. We may also point out that it has been contended by Dr. Farogh 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 ."
As the portions that have been emphasized clearly indicate, the facts in the cited case were quite different from those at hand. In the present case, the Authority had accorded its regularization to the completion plan on 4-5-2009, i,e, before the amendments relied upon were even made or published in the gazette and there is no plea of discrimination as was raised in Printek.
19. In my view, the plaintiff has made out a case for interim relief. On all possible views, there has prima facie been a substantial violation of the law. The ground reality on the suit property is such that the construction as approved and regularized by the Authority would materially alter the usage of the plot and place a burden thereon far in excess of what is permissible. This cannot but materially and adversely affect the plaintiff. The conduct of the defendant No, 1, in the attempts made to repeatedly knowingly and deliberately violate even the "approved" plan, leading twice to demolition exercises by the Authority, is also something that cannot be ignored. The strange and unexplained reversals and shifts by the Authority also raise serious questions and doubts. A clear case for interim relief has been made out.
20. Before concluding, I may note that the foregoing observations are only for purposes of the present order and in the context of interim relief. The suit, when it goes to trial, will of course be decided strictly on the basis of the evidence as is actually led by the parties, uninfluenced by anything said herein.
21. In view of the foregoing, I accordingly direct and order as follows: a. CMA 1509/2009 is allowed and the defendant No, 1 is restrained from advertising, selling or otherwise creating any third party interests in any building on the suit property or any portion thereof and in addition, the regularization accorded by the Authority by its order dated 4-5-2009 is hereby suspended; and b. C.M.A. 2904 of 2011 is dismissed.