' AZIZ-UR-REHMAN, J.- This petition was filed on .24-5-2012 by Abdul Latif son of Muhammad Ibrahim through his lawfully constituted attorney Muhammad Salman son of Abdul Latif resident of House No,245/1, Shah Faisal Street, Tando Adam, District Sanghar, W'ith the following prayers:-
(a) Direct the respondents Nos, 1 and 2 to take stem legal action against the respondent No,3 who'acted beyond his powers and . Authority for which he was not competent under the law and thereby attempted fo disturb the family lives of the petitioner's family so also other residence of the area.
(B) Issue the directions to the respondent No,3 to stop the further construction of proposed building of the respondents Nos,4 and 5 and dealt in accordance with law. *
(C) Further be pleased to restraining the respondents Nos,4 and 5 not to raise further construction of their proposed building whose status was illegally converted from residential to commercial by the respondent No,3 in contravention to town planning laws.
2. The brief facts leading to filing of above petition are that the petitioner is a respectable, law abiding and peace loving citizen of Pakistan and keeps law of the State in its highest esteem.
Further respondents Nos,4 and 5 are residing in House No,124, Ward-A, situated in front of the house of the petitioner. The Street between house of the petitioner and respondents Nos,4 arid 5 is very narrow and area is purely a residential area and has never been declared a commercial one by Government of Sindh. Further respondents Nos,4 and 5 in collusion with respondent No,3, without observing legal and codal formalities, started construction work of House No,124, Ward-A, Shah Faisal Street, Tando Adam, District Sanghar upto three storeys with addition of 8 shops. By doing so status of building from residential to commercial is being converted. It is further stated that respondent No,3 in consideration of illegal gratification approved building plan of respondents Nos,4 and 5 and such approval by respondent No,3 is illegal and without competence. It is also asserted by petitioner that initially the petitioner approached respondent No,3 and raised objections regarding illegal construction of house but to no avail. Raising of such illegal construction by the respondents Nos,4 and 5 has disturbed the privacy of inmates of petitioner's house. Besides due to construction of shops, there will be free visit of strangers which indeed, will cause problems and law and order situation for people residing in Shah Faisal Street which is purely a residential area. Respondent No,3 has incompetently approved ground floor, first floor and second floor plus shops proposed to be constructed on ground floor.. Address shown in site plan is House No,124, Ward-A near Faisal Masjid, Tando Adam however, contrary to this in the approval letter No,M.E/162/2012 dated 15-2-2012 issued by respondent No,3 (Annexure "B" to the Petition) mentions house address as, House No,124, Ward-D, Joharabad, Tando Adam which is a separate mohalla far from the house of respondents Nos,4 and 5. It is further stated by petitioner that vide letter No,M.B./172/2012 dated 25-11-2012 respondent No,3 cancelled the plan on application moved by petitioner. This cancellation of approved plan, indeed, was after almost completion of construction work. In this way it is stated the construction raised by respondents Nos,4 to 5 with collusion of respondent No,3 has infringed fundamental rights of petitioner and his family members as guaranteed under Article 14 of Constitution of Islamic .Republic of Pakistan 1973 which protects privacy of home and family. Apart from above respondents Nos,3 to 5 have also violated Article 25 of Constitution of Islamic Republic of Pakistan 1973. On account of such illegality committed by respondents Nos,3, 4 and 5 the petitioner is an aggrieved party and thus has filed this Constitutional Petition for redress of his grievance.
3. Above matter came up before this court on 24-5-2012 when petitioner was directed to implead Regional Director, Sindh Building Control Authority, Hyderabad as respondent to instant petition.
Consequently amended title was filed on 24-5-2012 wherein Regional Director, SBC A Hyderabad was impleaded as respondent No,6. Besides under the same order dated 24-5-2012, Additional Registrar was appointed as commissioner to inspect the site by associating the Deputy Director, Sindh Building Control Authority, Hyderabad. The Commissioner thereafter, in compliance of court's order dated 24-5-2012 submitted his report dated 1-6-2012 of which some relevant paras are as under:-
(a) On 30-5-2012 the undersigned left the office along with Mr. Maqsood Ali, Deputy Director, SBCA, Hyderabad Region (respondent No, 6) and the petitioner and his counsel Mr. Wali Muhammad Khoso, advocate and reached at the site at above 3-00 p.m. Where the following concerned were found present:-- (/) Mr. Sanaullah Junejo, Municipal Engineer, Tondo Adam for respondent No,3: .
(2) Respondent No,4 Mr. Irshad Ahmed son of Abdul Razzaq (CNIC No,44206-1838031-7)
(3) Respondent No,5 Mr. Shamshad Ahmed son of Abdul Razzaq (CHIC No,44206-3875273-5)
(b) After reaching the'site the undersigned inspected the House No,124/A, Shah Faisal Street, Tando Adam, District Sanghar of respondents Nos,4 and 5 at the pointation of petitioner. The construction of ground, first and second floors were found in accordance with building plan, approved on 15-2- 2012 attached with memo of petition as Annexure-A. On the ground floor eight shops were found constructed photographs whereof were taken which are marked as annexure AR/1 and AR/2. These shops were also found constructed as per abovesaid building plan marked as Annexure-A to the memo of petition. Respondent No,5 also showed the original building plan dated 3-6-1980 issued by Chairman,: Municipal Committee, Tando Adam, according to which on the ground floor instead of shops one drawing room, two rooms and one kitchen etc. Have been shown. A photocopy of the said building plan is attached herewith and marked as annexure AR/3.
(c) That with regard to the contention of the petitioner that the street in between the house of the petitioner and the respondents Nos,4 and 5 is very narrow which is hardly 7feet in the width, it is submitted that the house of the petitioner is located in front of the house of the respondents Nos, 4 and 5'on the northern side. The street from western side to the eastern side passing through between the houses of the petitioner and the respondents Nos, 4 and 5 was measured at three different places by the said Deputy - Director, SBCA as follows:-
(i) First Place (starting point) Wall to wall 11 '.3"
(ii) Second Place (middle point) Wall to wall 11'.0"
(iii) Third place (ending point) Wall to wall 10'.3"
Note. The above mesurements include 2'.6" petitioner's side Thalia and 2'.5 " respondents' side Thattah
(d) Mr. Maqsood Ali, Deputy Director, Sindh Building Control Authority, Hyderabad Regi6n has informed that the Sindh Building Control Authority came to existence in the month of February, 2011 and the area of Tando Adam falls within the jurisdiction of. Regional Director, Mirpurkhas and before that the authority to approve building plan vested in the Municipality. The original building plan Annexure AR/3 approved by the Municipal Committee on 3-6-1980 did not contain the construction of shops on the ground floor, however, the added/altered building plan Annexure-A to the petition contained the eight shops on the ground floor. The said construction of the house of the respondents Nos,4 and 5 is in accordance with the said building plan approved on 15-2-2012 which appears to have been cancelled later on vide letter dated 25- 2-2012 issued by the. Transition Officer (defunct) Taluka Municipal Administration, Tando Adam (Amexure-C to the memo of petition).
4. In response to Commissioner's report none of the respondents, except, the petitioner filed any objections. The respondent No,6 however, filed written statement on 19-7-2012 wherein it was specifically stated that status of building in question is residential and matter pertaining to the land use, conversion, relates to Town Planning Department, Government of Sindh. It was further stated therein that respondent No,3 has illegally approved and allowed permission of shops and later on, no doubt, the same was cancelled. Besides it was categorically stated, that approval of building plan by respondent No,3 is illegal muchless after establishment of SBC A as per Notification issued by Government of Sindh, Local Government Department vide No,SO(L&C)/HTP/5-281/2009 Karachi dated 14th February, 2011. The shops constructed at site, it was also stated by respondent No,6, have been occupied by tenants as per inspection report of Inspector Buildings and Assistant Director, Mirpurkhas Region.
5. Mr. Jagdish R. Mulani, Advocate, learned counsel for the petitioner contented that conversion of residential house to a commercial building causes nuisance to people of street including the petitioner. He further contended that site plan of house of respondents Nos,4 and 5, for ground, first and second floor with addition of eight shops and approval of the same vide approval letter dated 15-2-2012 of respondent No,3, besides being without competence is illegal. Further the learned Counsel for the petitioner contended that after almost completion of construction work, the approved plan was cancelled vide letter dated 25-2-2012 however, respondents Nos,4 and 5 in any event were benefited. Learned counsel for the petitioner also contended that site inspection report submitted by Commissioner/Additional Registrar regarding construction of House No,l24-A, Shah Faisal Street, Tando Adam, belonging to respondents Nos,4 and 5 is erroneous. For the reasons that neither it was modified nor altered or revised approved plan but in fact it was a newly-approved plan, ter learned counsel according to the "original building plan" produced by respondents Nos,4 and 5 dated 3-6-1980, issued by Chairman, Municipal Committee, Tando Adam, on the ground floor instead of shops, there were one drawing room, two rooms and one kitchen only. The respondents Nos,4 and 5 in contravention of original building.Plan dated 3-6-1980 carried out/raised construction under a fresh building plan of 2012 in which there are eight shops on ground floor like shopping market in residential area. Learned counsel for petitioner while concluding his arguments submitted that shops constructed in a pure residential area are illegal and need to be demolished as the entire construction raised is contrary to the original building plan dated 3-6-1980. In this regard the learned counsel for petitioner placed reliance on 2012 CLC (Sindh) 131 (Brookes Pharmaceutical Laboratories (Pakistan) Ltd., Karachi through Authorized Director v. KBCA through Chief Controller and 5-others).
6. Conversely Mr. Nusrat Mehmood Gill Advocate, learned counsel for the respondents Nos,4 and 5 submitted that construction carried out/raised pursuant to site plan of 2012 is legal and quite in accordance with subsequent approved plan. He further contended that illegality if any, has been committed by respondent No,3 who despite being incompetent has approved the building plan.
For such illegal action respondents Nos,4 and 5 cannot be penalized fiotwithstanding the fact subsequently such approved plan was cancelled by respondent No,3. The learned counsel for the respondents Nos,4 and 5 also argued that petition is not maintainable and liable to be dismissed.
7. On the other hand Mr. Shamsuddin Sehto Advocate, learned counsel for the respondent No,6 vehemently contended that respondent No,3 was not competent in any manner whatsoever to change residential status of land to commercial one. Per learned counsel for respondent No,6 the status of building in question is residential and matter of use of land and its conversion pertain to Town Planning Department, Government of Sindh. The act of respondent No,3 of approving and allowing permission of shops and of raising building in violation of original approved plan was illegal and without competence. Lastly the learned counsel for respondent No,6 contended that respondent No,3 was not competent to approve and/or cancel any site plan after issuing Notification ' No,SO(L&C)/HTP/5- 281/2009 Karachi dated 14- 2-2011.
8. We have heard the arguments advanced by learned counsel for the parties and have also minutely perused the record.
9. In order to properly appreciate rival contentions of learned counsel for the parties, it would be beneficial to reproduce herein the approval LetterNo,ME/162/2012 dated 15-2-2012 by respondent No,3 as under:-- ' "NO,ME/162/2012 ' OFFICE OF THE ' MUNICIPAL COMMITTEE TANDO ADAM ' DISTRICT SANGHAR Dated the 15th February, 2012 To, .
Mr. Irshad Ahmed son Abdul Razzaque alias Ghessa resident of CSNO, 124, Ward-A, near Faisal Masjid Tando Adam Sub: ARRIVAL OF ADDITION AND ALTERATION GROUND+ TWO STOREY HOUSE/SHOPS ON CS NO,124, WARD-D, JOHARABAD TANDO ADAM With reference to your application Plan is hereby approved on City Survey No,124, situated on CS No,124, Ward A, near Faisal Masjid Tando Adam, your risk and cost subject to the following condition:-
(1) That there should be no encroachment on Municipal Administration Road/Streets area and for keeping gara and other article separate permit should be obtained.
(2) That there should be no window or ventilator to the side of neighboring houses unless approved otherwise.
(3) Balcony 84.00 Sq. Ft allowed.
(4) That completion certificate should be obtained from the Taluka Municipal Administration as and when the work is over.
(5) That the Municipal Administration will not be responsible, if any dispute or litigation arises regarding the ownership of building etc. At any stage.
(6) It will be responsibility of the owner to get the structure designed from a qualified Engineer registered with PEC before starting the work.
(7) That the Municipal Administration reserves the right to reject Cancel the approval of building plan concerned without assigning any reason thereof. Sd/- (TRANSITION OFFICER) MUNICIPAL COMMITTEE TANDOADAM"
The cancellation letter No,M.E/172/2012 dated 25-2-2012 issued by respondent No,3 is also reproduced herein:- No,M.E./172/2012 .
OFFICE OF THE (DEFUNCT) TALUKA MUNICIPAL ADMINISTRATION TANDO ADAM DISTRICT SANGHAR Dated: the 25th February, 2012 "To, Mr. Irshad Ahmed son of Abdul Razzaque alias Ghessa resident of City Survey No,124, Ward-A, TANDO ADAM SUBJECT. CANCELLATION OF SHOPS The plan which has been approved by this administration vide Letter No,MEH62/2012 dated 15-2-2012, in which the shops are shown opposite house of Mr. Abdul Lateef son of Shaikh Ibrahim, the same are hereby cancelled on the written complaint of Mr. Abdul Lateef son of Shaikh Ibrahim.
' You are directed to stop the work of construction of shops . Immediately. Sd/- ' TRANSITION OFFICER (DEFUNCT) TALUKA MUNICIPAL COMMITTEE ADMINISTRA TIQN TANDOADAM"
10. Besides it would be appropriate to reproduce herein sections 6 and 7-A of the Sindh Building Control Ordinance, 1979 which runs as follows:- "Section 6. Approval of plan.- (1) No building shall be constructed before the Authority has, in the prescribed manner, approved the plan of such building and granted no objection certificate for the construction thereof on payment of such fee as may be prescribed: Provided that in the case of a building the construction whereby has commenced before coming into force of the Ordinance, the Authority's approval of the plan and no objection certificate shall be obtained not later than six months after the enforcement of the Ordinance.
Explanation- The work "construct" with all its variations used in this section and hereafter shall include "reconstruct" with all its variations and, additions or alterations.
(2) No building mentioned in subsection (1) shall be occupied by any person or shall be allowed by the builder to be occupied, before the Authority has, on application of the occupant or owner, issued occupancy certificate, in such manner as may be prescribed.
(3) No building mentioned in subsection (1) shall, except with the permission of the Authority, be used for the purpose other than that for which its plans were approved.
(4) where the Authority satisfied that the purpose for which the building is desired to be used is consistent with the approved plans of the building, it may grant the permission under subsection
(3) on such conditions and on payment of such fees as it may fix.
(5) at any time .... ..................................................... .........................................
(6) Where any order........................ ................. ................................................
' Section 7-A Violation of certain provisions- where the provisions of subsection (I) of section 6 are violated the building may without prejudice to any other action including sealing of the building or ejectment of the occupants be ordered by the Authority or any officer of the Authority authorized in this behalf to be demolished, at the cost of the builder in the case of public buildings and the owner in other case".
11. As far as the maintainability of the Petition is concerned we would like to mention herein that the construction activities under the Sindh Building Control Ordinance of 1979 are controlled by and governed under the concerned Authority. Buildings, as a rule, are to be raised on the basis of approved plans and such plans of course, are to be in consonance with the relevant scheme, spreading over a specific area. The constructions, re-constructions and even modifications or alterations are to be on the basis of approved plans. The local authority operating in such areas indeed is obliged to ensure the strict observance and implementation of Law, Rules and Regulations. In the Division Bench case supra, Honourable Chief Justice of this Court Mr. Justice Mushir Alam, C.J., while dilating upon the performance of duties and discharge of legal obligations by the Public Functionaries observed in paras-9, 10 and 11 in the following words:- "9. It is irony of our society, that after sixty years of independence instead of progression we are witnessing digression in moral and ethical values, which used to be hallmark of a Muslim society, one of the reason being that the authority higher in position and custodian of public rights and interests takes pride in breach, violation and defiance of the law rather than standing up, ensure obedience, follow and enforce the law. It is disparaging to note that the Regulatory Authority responsible to enforce the restrictive covenants, and authority to check misuse of property for a purpose other than for which its plan was approved, collaborate, side or over awed by yet another custodian and enforcer of law (FIA) responsible to eradicate crime in the society. The Regulatory Authorities not only provide sham justification rather encourage transgressing and stampeding the law. Article 5 of the Constitution mandates and bound down unequivocally all and sundry to- obey Constitution and law, public functionary who are custodians of public right and property are also duty bound to respect, obey and follow 1he mandate of constitution and law. In case any one including any public functionary more particularly, which is responsible to stamp out crime and wrong from the society transgress their limits and/or are found to be in breach of their duty, it is the duty of the Courts of laws to discipline such erring functionary and remedy the wrong by issuing appropriate writ.
(10) One of the reasons of anarchy in our society is owning to the fact, that those in authority and responsible to enforce law and , bring the wrong-doer to face trial, themselves flout and transgress law with impunity, which conduct by any standard cannot be approved. It has time and again been observed by superior courts that every person and authorities alike how high so ever, are mandated by Constitution to perform their duties and discharge their function within the limits prescribed by law, respect and obey the Constitution and law in letter and spirit, it is only then anarchy, chaos and disorder in the society can be eliminated. If we as a nation, desire to stand out the comity of nation as a civilized society; then all and sundry more importantly the public authority and functionary must resolve due observance and obedience to Constitution and law as a norm and deviation a rare and justiciable exception, however, in our society unfortunately it is quite reverse. Regretfully despite repeated reprimand and remedial and corrective directives issued by courts of law, instead of taking corrective measures and adhering to Constitution and law it is observed that tendency in . Public authority and functionaries is growing to be more disrespectfid to Constitution and law, such blatant transgression and adhorrence to Constitution and law by high public functionaries have a trickling and adverse effect on lower formation and ultimately effect the over all peace and tranquillity in the society.
(11) Any abdication in performance of public duty is itself in breach of Article 5(2) of the Constitution of Pakistan and could have serious fall out and implications."
' In case of any violation by Statutory bodies, which otherwise, are required under law to give effect to the rights and/or interests by enforcing their rules and regulations, we are of the considered view, |b could be questioned appropriately in Constitutional jurisdiction by aggrieved persons because for maintaining such Constitutional remedies, existence of rights stricto sensu is not necessary. l2. As far as the Building Construction by the respondents Nos,4 and 5 is. Concerned, admittedly the same has been raised pursuant to plan of 2012, which was approved by respondent No,3 and not in accordance with the original plan of 3-6-1980 issued by Chairman Municipal Committee, Tando Adam, according to which on the C ground floor instead of shops there were shown one drawing room, two rooms and one Kitchen only is evidently illegal therefore, keeping in view of sections 6 and 7-A of the Sindh Building Control Ordinance, 1979, is liable to be demolished by the concerned Authority(ies).
13. Under circumstances, we direct the concerned authorities/ respondent No,6 to immediately take action against the use of the subject property/Building which was illegally constructed by the respondents Nos,4 and 5 with collusion of respondent No,3 within (45) days from the date of receipt of copy of this order.
14. For the foregoing reasons the petition stands allowed in the above terms. The listed applications M.A. No,3118 of 2012 and M.A. No,3576 of 2012 having become infructuous/served its purpose, stand disposed of.