' MUHAMMAD ATHER SAEED, J.---This petition for leave to appeal has been filed by the authority duly constituted as Quaid-e-Azam's Mazar Management Board vide Notification No. PCTA/Cul QMF/3(1)/72, dated 3rd April, 1972 passed under the Quaid-e-Azam's Mazar (Protection & Maintenance) Ordinance, 1971 impugning the judgment of the learned High Court of Sindh dated 16.12.2005 in Constitution Petition No. 953 of 2004 whereby the Constitution petition filed by the present petitioner was dismissed.
2. Brief facts of the case are that petitioner is an authority duly constituted vide Notification No. PCTA/Cul QMV/3(1)/72, dated 3rd April, 1972 issued under the Quaide-Azam's Mazar (Protection & Maintenance) Ordinance, 1971 for monitoring and protection .Of the sanctity of .The Mazar which had filed Constitution petition in the learned High Court of Sindh seeking following reliefs:--- "1. Declare that all buildings constructed above 91 feet 0.above mean sea level within a radius of 3/4 mile of Quaid-e-Azam's Mazar as illegal and being derogatory to the sanctity and dignity of Quaid-i-Azam's Mazar and is any case contrary to the Regulations.
2. Direct the Respondent Nos. 1 to 4 to demolish all structures of all buildings above 91 feet above mean sea level within a radius of 3/4 mile of the Quaid-iAzam's Mazar as being derogatory to the sanctity and dignity to the same and against the law; ' Direct the Respondent Nos. 1 to 4 to ensure that full compliance in this regard and report to the Petitioners as well as Respondent No. 2 by prohibiting construction of any building above 91 feet, above mean sea level with a radius three-quarter mile.
' Any other relief this Honourable Court deems fit in the facts and circumstances of the case."
' The learned Sindh High Court after hearing the arguments of the learned counsel for the parties had dismissed the petition. Hence this petition for leave to appeal.
3. We have heard Mr. Naeemur Rehman, ASC learned counsel for the petitioner, Mr. Khalid Anwar, Sr.
ASC learned counsel for respondents No. 5 & 6, Mr. Manzoor Ahmed, ASC for respondent No. 2 & 3 and Mr. Zulfiqar Ahmed Bhutta, ASC learned counsel for respondent No. 4.
4. Mr. Naeemur. Rehman; ASC learned counsel for the petitioner has reiterated the same arguments which he had advanced before the learned High Court which did not find favour from the learned High Court. He submitted that after the receipt of the verbal directions of the then President the meeting of the Board was convened on 29.1.1979 which was attended by the Members of the Board and various other authorities including the then Deputy Chief Martial Law Administrator and in this special meeting a resolution in the following terms was passed:--- "The Deputy Martial Law Administrator emphasized that bye-laws be made by KMC/KDA to regulate tie heights of all structures within three-fourth of a mile from the Mazar. The Board agreed with the suggestion and the KDA/KMC representatives promised to comply forthwith."
' The learned counsel then drew our attention to a letter dated 29.3.1980 issued by the then President General Zia-ul-Haq in which in paragraph (0 it was mentioned that no building in the area will be constructed higher than. The level of the :Mausoleum podium. The learned counsel submitted that directions given in the letter can be equated with the order of President and had been saved under Article 270A of the Constitution of Islamic Republic of Pakistan, 1973. He specifically referred to sub-Article (2) of Article 270A of the Constitution and mentioned that the word 'order' appearing as the second word in this Article in small letters referred to the verbal orders/directives issued by the then President and any order/directive issued by the President attains the force of law and has been saved under Article 270A of the Constitution and therefore the resolution passed by the Board on the directive of the President and notification issued by the Provincial Government on 10.9.1991 had both attained force of law and had to be followed in letter and spirit. On this point he relied on the judgment of this Court in the case of Miss Benazir Bhutto v.
Federation of Pakistan and another reported in PLD 1988 SC 416 and read out the extracts from pages 498, 507, 509 and 211 to fortify his point that any direction made by the President assumes force of law and is saved under the above Article. He then submitted that under the directive of the President, the Provincial Government issued a notification dated, 10.9.1991 whereby the height restriction on the building within The specified vicinity of the mazar was imposed. He submitted that since directions of the President were binding on the Provincial Government under Article 145 of the Constitution, therefore, the notification issued by the Sindh Government had legal sanction behind it as it was issued in accordance with the directive of the then President and therefore had to be followed and therefore, any building made after the President's direction and notification of the Sindh Government was violative of the specific directions and such building has to -be.
Demolished to the extent that the construction was illegal. In support of this contention he relied on the judgment of Sindh High. Court in the case of Muhammad Bachal Memon v. Government of Sindh (PLD 1987 Kar. 296) and judgment of this Court in the case of Federation of Pakistan v.
Ghulam Mustafa Khar reported in PLD 1989 SC 26. He submitted that learned High Court of Sindh had erred in holding that the President's directive and notification of the provincial government had not attained the force of law and wrongly reached the conclusion that only after the amendment was incorporated in Regulation No. 25-110 in the Karachi Building Town Planning Regulations, 2002 the height of the buildings within 3/4 miles radius of the. Quaid-e-Azam Mausoleum was restricted to 91 feet. He therefore prayed that impugned judgment may be set aside and he may be provided the reliefs sought by him in his Constitution petition.
5. Mr. Khalid Anwar, Sr. ASC learned counsel for respondents No. 5 & 6 strongly opposed the arguments of the learned counsel for the petitioner and supported the impugned judgment. He submitted that only function of the board was to protect and maintain the mazar and its jurisdiction was restricted to the area comprising the mazar and peripheral area defined in clause 2(a) of the Ordinance No. XXVII of 1971 and it was not empowered to legislate any law restricting the height of the building within 3/4 miles of the radius of the Quaid Mazar. He further submitted that only Sindh Building Control Authority was empowered to regulate and levy condition and restrictions in respect of the buildings in Karachi outside the peripheral area of the Quaid Mazar and therefore the learned Court has rightly held that this restriction will come into effect on 04.04.2002 when this was incorporated in the Karachi Building Town Planning Regulations and not before that Bite as no restriction was incorporated by Sindh Building Control Authority before this date. He submitted that the verbal direction of the President had not assumed the force of law and even if order mentioned above is read with sub-Article (2) of Article 270A of the Constitution it is, prima facie clear that authority is to be exercised in pursuance of any Proclamation, President's directive, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws and no such sanction has been shown by the learned counsel for the petitioner.
He submitted that it may have been the desire, wish or whim of the then President that the height of the building may be restricted to less then 91 feet but unless the President had issued an order in this regard in exercise of the proclamation there was no legal authority vested in the Board to restrict the height of the building in the city of Karachi and only the Sindh Building Control Authority had the jurisdiction to frame such bye-laws or regulations in accordance with the powers vested in it. He further submitted that notification can only be issued in accordance with any power vested in the authority issuing such notification and Provincial Government had no authority or power to issue any notification regarding the height of the building to be constructed within 3/4 miles radius of the Quaid Mazar. In order to substantiate this point he read out the notification and pointed out that even in the notification it has not been mentioned as to under which statute the Provincial Government had been granted power to issue such notification. He submitted that all notifications start with the words "in pursuance of the powers granted" and these words are missing in the notification issued by the Provincial Government. He, therefore, prayed that the petition being without merit may be dismissed and impugned judgment be upheld.
6. Learned counsel for Respondents No. 2 & 3 and respondent No. 4 adopted the arguments of learned counsel for respondents No. 5 & 6 and submitted that only City Government and Karachi Building Control Authority has the powers to monitor and regulate the construction of the building and petitioner board has no such power. They also prayed for the dismissal of the petition.
7. We have examined the petition in the light of the arguments of the learned counsel for the parties and have carefully examined the record of the case and perused the impugned judgment of the learned High Court.
8. A perusal of the impugned judgment reveals that learned High Court has elaborately discussed each and every argument made by learned counsel and has very ably dealt with all the arguments. We find ourselves in complete agreement with the findings of the learned High Court.
The main argument of the learned counsel for the petitioner revolves around two points, firstly that the resolution of the Board dated 29.1.1979 and the directive of the then President can be equated with the order made by the President and is saved under sub-clause (2) of Article 270A of, the Constitution and therefore, had assumed the force of law. Secondly, that the notification dated 10.9.1991 issued by the Provincial Government has been issued under Article 145 of the Constitution in compliance with the direction of the President which the Provincial Government is bound to do so under the above-referred Article and therefore had assumed the force of law.
9. Before we deal with these arguments, it will be relevant to reproduce the resolution of the Board and the directions of the then President given in this letter and the notification issued by the provincial government, which are reproduced as under:--- ' Resolution "The Deputy Martial Law Administrator emphasized that bye-laws be made by KMC/KDA to regulate the heights of all structures within three-fourth of a mile from the Mazar. The Board agreed with the suggestion and the KDA/KMC representatives promised to comply forthwith."
' Extracts from President's letter dated 29.3.1980 f. No building in the area will be constructed higher than the level of the Mausoleum's podium, and the facade of all such buildings will be in conformity with the sanctity of the Mausoleum. To ensure strict compliance, architectural drawings of all buildings will be approved by the OMF Board before their construction work is undertaken.
' Sindh Government Notification "NO. SOI(KDA)6-108/90. The Government of Sindh is pleased to re-affirmed and confirm the decision of the Quaid-i-Azam's Mazar Management Board dated 29.01.1979 to the effect that, no building will be constructed above the podium level of Quaid-i-Azam's Mazar i.e. 91 feet above Mean Sea Level (M.S.L) within a radius of six (6)" furlongs of the Quaid-i-Azam's Mazar."
10. A perusal of the resolution of the Board reveals that a suggestion had been made by the then Deputy Martial Law Administrator to regulate the height within 3/4 miles radius of the Mazar and it had been agreed by the board and KI)A/KMC were directed to comply with it. Even in this resolution the compliance of the suggestion was entrusted to KMC representative and unfortunately it was not complied with till 2002. It is also relevant to note that no maximum height has been mentioned in this resolution. The President's directive which is reproduced above also does not mention any height restriction except that no building in the area will be constructed higher then the level of Mausoleum's podium. Even if we read first line of this letter it is mentioned that proposals were for the utilization of the peripheral area of the Quaid-i-Azam Mausoleum and as already mentioned above peripheral area has been defined in sub-clause (2) of the Ordinance No. XXVII of 1971 as under:- "Peripheral Area" means the land measuring seventy-one acres or thereabout situated outside the grilled boundary' wall referred to in clause (b), as described in the plan set out in the Schedule."
' So the only conclusion which can be drawn is that no building in the peripheral area can be higher than the Mausoleum. The notification of the Provincial Government does not talk about any directive of the President but only mentions that the Sindh Government re-affirms and affirms the decision of the Quaid Mazar Board dated 29.1.1979.
11. We will now peruse the Articles 270A and 145 of the Constitution to examine the validity of the arguments of the learned counsel for the petitioner that the President's directive is saved under Article 270A of the Constitution and the Provincial Government had the authority to validate the direction of the President as envisaged in Article 145 of the Constitution. Article 270A of the Constitution which is reproduced as under:--- "Article 270A: (1) The proclamation of the fifth day of July, 1977, all President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, including the Referendum Order, 1984 (P.O.No. 11 of 1984), 1* * * the Revival of the Constitution of 1973 Order, 1985 (P.O.No. 14 of 1985), the Constitution (Second Amendment) Order, 1985 (P.O.No. 20 of 1985), the Constitution (Third. Amendment) Order, 1985 (P.O.No. 24 of 1985), and all other laws made between the fifth day of July, 1977, and the date on which this Article comes into force are hereby affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made by competent authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any Court on any ground whatsoever: ' Provided that a President's Order, Martial Law Regulation or Martial Law Order made after the thirtieth day of September, 1985, shall be confined only to making such provisions as facilitate, or are incidental to, the revocation of the Proclamation of the fifth day of July, 1977.
(2) All orders made, proceedings taken and acts done by any authority or by any person, which were made, taken or done, or purported to have been made, taken or done, between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation, President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any Court always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever.
(3) All President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders, or bye-laws, in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority.
Explanation.--- In this clause, "competent authority" means,---
(a) in respect of President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders and enactments, the appropriate Legislature; and
(b) in respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal or amend the same vests under the law.
(4) No suit, prosecution or other legal proceedings shall lie in any Court against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.
(5) For the purposes of clauses (1), (2) and (4), all orders made, proceedings taken, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby. -
(6) The laws referred to in clause (1) may be amended by the appropriate Legislature in the manner provided for amendment of such laws."
"Article 145: (1) The President may direct the Governor of any Province to discharge as his Agent, either generally or in any particular matter, such functions relating to such areas in the Federation which are not included in any Province as may be specified in the direction.
(2) The provisions of Article 105 shall not apply to the discharge by the Governor of his functions under clause (1)."
' A perusal of Article 270A of the Constitution leads to the conclusion that only those enactments have been saved which were made in exercise of the powers derived from any Proclamation, President's directive, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws and such enactment has been made on the basis of which powers were exercised. The desire, whims, or fancy of the President cannot be equated with the order and therefore there is no question of it being saved under Article 270A of the Constitution. The extracts from the judgment of this Court in the case of Benazir Bhutto quoted supra has no nexus with the present case and are irrelevant and distmguishable.
' Article 145 does not provide for the following of the directives of the President by the Provincial Government and only provided delegation to the Governor by the President as his Agent, either generally or in any particular matter of such functions relating to such areas in the Federation which are not included in any Province as may be specified in the direction. 'This Article has no nexus with the present case.
12. We therefore, are of the considered opinion that the learned High Court of Sindh after considering all aspects of the case passed the impugned judgment in conformity with law and contents of the judgment are unexceptionable and no interference is called from this Court. Thus, this petition being without any merit is dismissed and leave to appeal refused.
High Court Judgment Upheld/.