' MRS. ASHRAF JAHAN, J.---The petitioner Muhammad Hussain through his attorney Riazuddin Rajoo has invoked the jurisdiction of this Court by way of filing the present petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution") with the following prayers:- "(a) A direction to the respondents Nos. 2 and 3 and their staff not to harass the petitioner and pay threatening visits to the subject property and direct the respondents to conduct their affairs in accordance to Rules and Regulations and stop violating the dignity, honour, respect and security of the citizens and protection of their property which is guaranteed under the Constitution of Pakistan, 1973.
(b) To hold that the acts of harassing the petitioner by the respondents and their harassing visits to the subject property are illegal, unconstitutional and without lawful authority.
(c) Direct the respondents Nos. 2 and 3, their employees, servants, representatives, staff members and/or any other person acting under their control or guidance not to pay threatening visits to subject property or humiliate, insult or harass the petitioner and his servants, employees, assigns etc. In any manner till the final disposal of this petition.
(d) A declaration that the petitioner is entitled in law to raise construction on the subject property according to the approved building plan dated 13-8-1998 bearing letter No, KBCA/KDA/ DCB/XIX/PROP/160/28/98/34 and that the acts of the respondent Nos 2 and 3, interfering in the lawful construction on the subject property by adopting different methods are illegal, unauthorized, void ab initio, mala fide in law, violative of the Fundamental Rights and of no legal consequences.
(e) An order restraining the respondents Nos. 2 and 3 and their employees, servant, agents and assign from extending any threatening visit to the subject property and to interfere in the lawful construction being raised strictly in accordance with approved Building Plan dated 13-8-1998 and to demolish any part of the lawful construction on 4th floor of subject property.
' Any other relief(s) which this Hon'ble Court may deem fit and proper under the circumstances of the case.
(g) Cost of the suit."
2. It is the case of the petitioner that he is the bona fide owner of a piece of land bearing Survey No, 126, Survey Sheet (Old No, 44), Jamshed Quarters, Karachi admeasuring 2066 square yards, (in short 'subject property') which was purchased by him through a Conveyance Deed in the year 1997.
Initially the petitioner obtained permission from the respondent No, 2 for demolition of the old structure on the subject property, which was duly granted by the respondent No, 2 upon payment of the requisite fee. Thereafter, the petitioner paid a huge amount in respect of the subject property for its betterment charges, scrutinizing fee, structural fee and also submitted the Architectural Concept Plan, which was duly approved by the KBCA now (SBCA) i,e, respondent No, 2 for Basement + Ground + 3 upper floors. Accordingly, the construction started and after completion of the construction as per its approved building plan, the vacant and peaceful possession of the flats constructed on the subject property was delivered to the purchasers, which is now occupied up to 3rd floor. Subsequently, the petitioner applied for construction of an additional floor i,e, 4th floor on the subject property, approval of building plan of additional 4th floor was also issued on 13-8-1998.
3. Further, it is the case of the petitioner that construction on 4th floor of the subject property was carried out in accordance with provisions of the Sindh Building Control Ordinance 1979, except that there were some minor violations. However, an objection was raised by the respondents Nos. 2 and 3 on the issue of restriction of height on account of the subject property being within 3/4 mile radius of the Quaid-e-Azam Mausoleum. Though the said question was duly responded by the petitioner, but the respondents Nos. 2 and 3 remained reluctant to process the application submitted by the petitioner. The petitioner finally filed the Regularization Plan of the construction raised on 4th floor of the subject property with the protest that the requisite building approval was granted prior to promulgation of the Karachi Building and Town Planning Regulations, 2002 (hereinafter referred to as the "Building Regulations 2002") and therefore, a height certificate in respect of the subject property was not necessary. Despite the pendency of Regularization plan before the respondent No, 2 the officers of the respondents in a mala fide manner partially demolished the construction which was lawfully raised on the 4th floor and illegally issued threats of further demolition of building on the pretext that after promulgation of Building Regulations, 2002 the height certificate was mandatory for the subject property.
4. It is also the case of the petitioner that he made several visits to the respondent's offices for the purpose of finding out the reasons for demolition of the construction of 4th floor and further to get assurance that in future the respondents shall not demolish the lawful construction to be raised by the petitioner. But the respondents have time and again responded in the same manner.
Meanwhile in the year 2004.
5. Constitutional Petition was filed by Quaid-e-Azam's Mazar Management Board Karachi wherein it was alleged that all the construction within 3/4 mile radius of Quaid-e-Azam's Mazar shall be required to follow the height restrictions of building plan, upon which the Division Bench of Hon'ble High Court of Sindh was pleased to pass a Judgment dated 21-12-2005, declaring that the curb on height of the building above the podium level of 91 feet within 3/4 mile radius of Quaid-e-Azam's Mazar could only be enforced from the date of Sindh Building Control and Town Planning Regulations, 2002 (SB&TP), therefore, after 4-4-2002 the KBCA can not approve any building plan beyond the height limits set down in the Regulation 25 of the SB&TP. The above Judgment was challenged before the Hon'ble Supreme Court of Pakistan which was pleased to dismiss the appeal of Quaid-e-Azam's Mazar Management Board against the aforesaid judgment with the observations that the judgment passed by the Division Bench of the High Court was in conformity with the law.
5. It is further contended by the petitioner that after the judgment passed by the Hon'ble Supreme Court of Pakistan he again approached the respondents for the purpose of satisfying them about the approval granted to the petitioner in the year 1998 by the respondents Nos. 2 and 3 but the respondents behaved in the same manner. It has been further highlighted that in the immediate neighborhood of the subject property Plot No, JM 125/1 is situated and the respondents in the year 2005 have approved building plan of ground + 4 floors for the said property and the owner of the plot No, JM 125 has already raised construction by virtue of said approved plan. But on the contrary the petitioner is being deprived of his right to raise the construction in the same manner which amounts to serious discrimination and violation of Article 25 of the Constitution.
6. The respondents Nos. 2 and 3 have filed their counter affidavit in the present petition wherein the allegations levelled in respect of harassing the petitioner against both the respondents were denied however, it was admitted that the then authority KBCA has accorded an approval of construction of Basement + Ground + 3 floors vide letter No, KBCA/KDA/DCB/XIX/97/PROP /97/721/73/83 dated 4-10-1997. Moreover, the then authority has also accorded approval for 4th floor vide letter No, KBCA/KDA/DCB-III/97/160/28/98/34 dated 13-8-1998. However some allottees of the said project and the Resident Engineer, Quaid-e-Azam Management Board, Karachi had filed a complaint before KBCA against the said owner that construction of 4th floor had been raised illegally against the height restrictions, therefore, the Authority had stopped the said construction.
7. It is further the case of the respondents that High Court of Sindh has passed judgment in C.P. No, D-953/2004 against Quaid-e-Azams Mazar Management Board Karachi which was challenged before the Hon'ble Supreme Court of Pakistan but the Hon'ble Supreme Court of Pakistan has upheld the judgment of High Court dated 21-12-2005. It has been stated by the respondent Nos. 2 and 3 in clear words that in the light of judgments referred above, the SBCA has no objection if appropriate orders are passed in the interest of justice and at the same time it has been stated that the said approval of 4th floor is still intact and the authority (i,e, SBCA) further undertakes that neither they will harass the petitioner nor there will be any illegal interference except due process of law.
8. We have heard learned counsel for both the parties. It is contended by the learned counsel for the petitioner that the petitioner throughout has acted in accordance with law; obtained his building plan approval by the competent authority in the year 1997 and approval for the 4th floor in the year 1998 much before the promulgation of Building Regulations, 2002 but on the basis of frivolous objections raised by the respondents Nos. 2 and 3 on the issue of height certificate he has been discriminated due to which he has suffered irreparable loss. Not only this but it is also the case of the present petitioner that he has been illegally and unlawfully harassed by the 'respondents due to their mala fide and ulterior motives violating the fundamental rights of the petitioner as guaranteed under Articles 4, 9, 10-A, 23, 24 and 25 of the Constitution.
9. On the other hand learned counsel appearing for respondents Nos. 2 and 3 vehemently denied the allegations levelled against the respondents Nos. 2 and 3 in respect of harassment, however he conceded to the factual position that the then authority i,e, KBCA has accorded approval for 4th floor in the year 1998 which is still intact. He has submitted that the Hon'ble Supreme Court of Pakistan has upheld the judgment of Hon'ble High Court dated 21-12-2005 passed in C.P. No, D- 953/2004 filed by the QUAID-E-AZAM MANAGEMENT BOARD v. PROVINCE OF SINDH AND OTHERS therefore, in the light of above judgment of apex Court the authority (SBCA) has no objection if the court passes appropriate orders in the interest of justice. At the same time they have further undertaken that SBCA will neither harass the petitioner nor will cause any illegal interference with the petitioner's right except through due process of law. It was also advised by the learned counsel that instead of invoking the jurisdiction of this Court petitioner should have straight away come to the respondents in order to resolve the issue.
10. We have considered the arguments advanced by the learned counsel and have perused the case record. Admittedly, the petitioner was granted permission in respect of the construction to be carried out on the subject property vide letter No, KBCA/KDA/DCB/XIX/97/PROP/ 97/721/73/83 dated 4-10-1997 for basement ground + 3 floors. It is further admitted by both the parties that the then authority has accorded further approval for 4th floor vide letter No, KBCA/KDA/DCB-III/97/ 160/28/98/34 dated 13-8-1998 which is still intact. However on account of the objection raised by the respondents Nos. 2 and 3 on the issue of height of building above podium level of Quaid-e- Azam's Mazar, the petitioner was not allowed to complete his construction and some part of the construction was also demolished.
11. Admittedly in respect of the above issue judgment has been passed by the Hon'ble. High Court Sindh in C.P. No, D-953 of 2004 decided on 21-12-2005 whereby the height restriction of the buildings within the radius of 3/4 mile around Quaid-e-Azam's Mazar has been thoroughly discussed and it has been held that height restriction of a building above podium level of Quaid-e- Azam's Mazar i,e, 91 feet (27.72 meters) above Mean Sea level (MSL) within 3/4 mile (1.2 kilometer) radius of Quaid-e-Azam's Mazar become enforceable from the date of Notification of Building Regulations, 2002 with effect from 4-4-2002.
12. Admittedly the present petitioner got approval of 4th floor in the year 1998 which is not disputed therefore, the Building Regulations 2002 which are prospective in nature cannot be enforced retrospectively. It is also a matter of record that the above judgment has been upheld by the Hon'ble Supreme Court, therefore, accordingly we are of the considered view that petitioner is entitled for the requisite relief in terms of prayer clauses (d) and (e) of the petition.
13. Foregoing are the reasons for the short order dated 4-9-2013.
14. Civil Miscellaneous Application No, 9125 of 2012 also stands disposed off.