' IRFAN SAADAT KHAN, J:- The instant Constitutional Petition has been filed with the following prayers: a. Issue writ declare that the construction of houses made by Respondents Nos.5 to 7 as well as the construction of the multistorey building being raised by Respondent No.8 just behind the house of the Petitioner, are patently illegal, mala fide, in gross violation of Sindh Building Control Ordinance, 1979, Karachi Town Planning Regulations, 2002 as well as the Sindh Katchi Abadis Act, 1987 and the Regulations, 1993 made there under, thereby completely eliminating the purdah, security and sanctity of the Petitioner's house. b. Consequently, this Hon 'ble Court may further be pleased to order the Respondents Nos.1 to 4 to immediately perform their statutory obligations and duties in terms of Sindh Building Control Ordinance, 1979 read with Karachi Town Planning Regulations, 2002 and Sindh Katchi Abadis Act, 1987 as well as the rules framed there under, and to arrange demolition of the construction raised by the Respondents Nos.5 to 8. c. Permanently restrain the Respondents Nos.5 to 8 or any person or persons for, under or their behalf including (without limitation) its servants, employees, agents, attorneys /partners /directors or officers from allowing, raising, continuing or completing any construction behind the Petitioner's House No.15-B, North Avenue, Phase-I, D.H.A., Karachi, (including without limitation, the houses and building already constructed by Respondents Nos.5 to 7 and under construction by Respondent No.8) that is in violation of or contrary to the statutory and regulatory provisions or is in violation or in derogation of the Petitioners 'rights. d. Permanently restrain the Respondents or any person or persons acting for, under or on its behalf including (without limitation) its servants, employees, agents, attorneys or officers from applying for, pursuing or seeking to compound or seeking or obtaining any similar relief in respect of any construction behind the Petitioner's House No. I5-B, North Avenue, Phase-I, D.H.A., Karachi, (including without limitation, the houses and building already constructed by Respondents Nos.5 to 7 and under construction by Respondent No.8) that is in violation of or contrary to the statutory or regulatory provisions or the rights of the Petitioner. e. Issue a mandatory injunction against the Respondents, specially the official Respondents Nos.I to 4 and/or any relevant/concerned authority/authority, directing them to perform their statutory and legal obligations and demolish the construction raised by the Respondents Nos.5 to 8 in violation of or contrary to the statutory and regulatory provisions or the rights of the Petitioner and failing that to authorize any officer of this Court and direct the Respondents to carry out demolition of any such construction in any manner as deemed appropriate by this Hon'ble Court. f. Grant any other/alternate/better relief which this Hon'ble Court may deem appropriate under the fats and circumstances of the case.
2. It is averred in the petition that the petitioner is an owner of House No.15-B- North Avenue, Phase- I, D.H.A., Karachi and behind his house there is a Katchi Abadi, namely, Azam Basti. It is also averred that respondents Nos. 5 to 8 have made certain construction, which is illegal, as the same has been made without any approved plan. Moreover the said construction has been made in such a manner that privacy of the petitioner is badly affected, and easementory rights of the petitioner are also infringed. It is further averred that in the upper storey of the house of the private respondents' windows and outlets have been made which are affecting privacy of the petitioner and his family members. It is also averred that certain drainage pipes have also been erected in the house of the private respondents in such a manner that dirty and rain water falls in the courtyard of the petitioner's house. Petitioner filed a number of applications and complaints with the official respondents but when no heed was paid, thereafter the instant petition has been filed.
3. Mr. Khawaja Shams-ul-Islam Advocate has appeared on behalf of the petitioner and has submitted that since easmentory rights of the petitioner have been infringed and privacy of the petitioner is badly affected due to the above mentioned causes, the respondents Nos.5 to 8 may be issued necessary instructions to firstly make necessary arrangements so that the aforesaid illegalities could be curbed and secondly since the respondents Nos.5 to 8 are not having proper approved plans in respect of the properties held by them their properties are liable to be demolished. While elaborating his viewpoint, the learned counsel invited our attention to various photographs, Nazir reports, the compliance reports furnished by the official respondents and various orders passed by this Court on different dates and thereafter submitted that since the respondents Nos.5 to 8 have firstly violated the easmentory rights of the petitioner by not considering the aspects of privacy (pardah), necessary orders in this behalf may be passed, as fundamental rights of the petitioner are being infringed and violated and secondly since the respondents Nos.5 to 8 admittedly have no approved plans of their building and the lease documents issued, if any, in their favour are not in accordance with law hence not only the lease deed issued in favour of the private respondents may be cancelled but also the properties /buildings being without approved plan may be demolished.
4. The learned counsel for the petitioner further submitted that various orders have been passed, as is evident from diaries, for demolition of the illegal construction raised by the respondents Nos.5 to 8 but for one reason or the other same have not been carried out in the garb of creation of law and order situation and for other reasons. He further submitted that the petition is maintainable in view of the fact that official respondents in their compliance reports have admitted that the private respondents are not having any approved plans in respect of their respective properties/buildings.
Learned counsel in support of his above contentions has placed reliance upon the following decisions:
(1) Abdul Waheed Butt v. Mrs. Asma and 4 others (1989 CLC 1936)
(2) Dr. Muhammad Farooq v. Karachi Building Control Authority (K.M.C) and others (1997 MLD 2777)
(3) Shaukat Ali Qadri v. Karachi Building Control Authority (1998 CLC 1387)
(4) Mir Afzal Khan and 21 others v. Karachi Development Authority through Director-General and 4 others (PLD 1998 Karachi 283)
(5) Messrs ASCO International (Pvt.) Ltd. Through Manager v. Government of Sindh through Secretary, Industries, and 3 others (2008 CLC 642)
(6) Sadiq Ali v. City District Government and others (2004 MLD 1659)
(7) Din Muhammad Qureshi v. Government of Sindh and others (2003 CLC 245)
(8) Shaukat and others v. Controller, Karachi Building Control Authority and others (2004 YLR 1192)
(9) Naik Muhammad v. Maqbool Ahmed and others. (2004 YLR 2777)
(10) Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1969 Supreme Court 223)
(11) Abdul Waheed Butt v. Mrs. Asma and 4 others (1989 CLC 1936)
(12) Suleman Mala v. Karachi Building Control Authority and 3 others (1990 CLC 448)
5. Mr. Anwer Ali Shah Advocate has appeared on behalf of the respondent No.2 and has supported the contentions of the petitioner and submitted that no approved plan is available with the respondents Nos.5 to 8 and their illegal construction is liable to be demolished, as per SBCA Rules, however, he has categorically conceded that various attempts were made by the official respondents for demolition of the illegal constructions but at each time a mob gathered at the site and hampered the proceedings of the demolition by creating law and order situation. He further submitted that whatever orders are passed by this Court would be complied with in letter and spirit. He in support of his contentions has placed reliance upon the following decisions:
(1) Sadiq Ali v. City District Government and others (2004 MLD 1659).
(2) Naik Muhammad v. Maqbool Ahmed and others (2004 YLR 2777)
6. Ms. Azra Muqeem Advocate has appeared on behalf of KMC and has adopted the arguments of Mr. Anwer Ali Shah.
7. Mr. Meeran Muhammad Shah, AAG has appeared on behalf of the respondents Nos.1 and 4 and he too has adopted the arguments of counsel for the official respondents and submitted that a number of attempts were made by the concerned SHO for demolishing the illegal constructions raised by the respondents Nos.5 to 8 but admits that due to law and order situation created by the residents of the area, demolition could not be carried out.
8. Nobody has appeared on behalf of the respondent No.3; however, their comments are available on the record.
9. Mr. Zahid Farooq Mazari Advocate has appeared on behalf of the respondents Nos.5 to 8 and has vehemently refuted the arguments of the counsel for the petitioner and the other official respondents. He has submitted that the assertion of the petitioner that the house of the respondent No.5 is behind the house of the petitioner is factually incorrect as there is a street falling between the houses of the respondent No.5 and the petitioner, hence the petitioner has made an incorrect statement. He further submitted that there is a gap of at least 6 to 10 feet between the house of the petitioner and the respondent No.5; therefore, there could not be any occasion of dropping of either dirty water or rain water in the courtyard of the petitioner. He invited our attention to the Nazir's report and submitted that from the record it is clear that there is a separation wall between the house of the petitioner and the respondents Nos.5 to 8. He further submitted that the petitioner has asserted that houses of the respondents comprises of six floors, which is incorrect. He submitted that firstly houses of the respondents are ground + one floor and only the house of the respondent No.8 is ground + three floors, which aspect has been endorsed in the Nazir's report also, hence, the petitioner has approached the Court with unclean hands and the petition is liable to be dismissed with heavy cost. He also submitted that all the respondents are having valid lease and are not land grabbers.
10. While further elaborating his viewpoint, the learned counsel for the respondents Nos. 5 to 8 submitted that Azam Basti is a very old location and the inhabitants are residing there since more than 50 years and the said Abadi has been termed as a Katchi Abadi, as per Katchi Abadi Act, 1987.
He further submitted that the said Katchi Abadi has already been regularized through the said Act and since the inhabitants of the area are residing there with valid lease documents hence demolition of their houses may create a chaos and the people living there since decades along with their families would be displaced without any legal and lawful justification. He submitted that since the petition involves disputed question of facts, the same could not be decided in a writ petition. He also stated that whether the respondents are having valid lease documents or not could not be the subject matter of a petition and if the petitioner is aggrieved that the respondents are not having valid lease documents, he should have filed a suit in this behalf but a constitutional petition on this aspect is not maintainable. He further stated that the respondents have already applied for regularization of construction made on the respective plots under amnesty scheme, which matter is subjudice before the respondent No.2, hence this petition is premature on this score also and is liable to be dismissed. In the end, learned counsel submitted that the respondents Nos.5 to 8 are ready to accommodate the petitioner by closing down the windows which, according to the petitioner, are infringing his rights of purdah and are also ready to close down the drainage pipes for good and to construct a wall to the satisfaction of the petitioner in order to preserve his easement rights to maintain cordial relations between the parties. In sulport of his above contentions, the learned counsel has placed reliance upon the following decisions:
(I) Muhammad Amin v. Karachi Building Control Authority (1992 CLC 691).
(2) Messrs Asma Builders v. Government of Sindh and 9 others (1993 CLC 326)
(3) Noor Muhammad and another v. Building Control Authority and 2 others (1992 CLC 729).
(4) Shan Ahmad v. Nazir Ahmad and others (1985 SCMR 1372)
11. Mr. Khawaja Shams-ul-Islam Advocate, in his rebuttal, stated that the petition is maintainable, since the matter not only pertains to public at large but since the petitioner is a neighbour of the respondents Nos.5 to 8 he has every right to challenge the illegalities committed by the said respondents by way of filing a petition. He further submitted that the amnesty provisions of KBCA for regularization of illegal construction were for one year only and the same are not available to the said respondents. He in the end submitted that this petition may be allowed firstly by accepting the easmentory and fundamental rights of the petitioner and secondly the houses /buildings of the respondents Nos.5 to 8 constructed illegally may be demolished by giving strict directions to the official respondents and other law enforcing agencies.
12. We have heard all the learned counsel at considerable length and have also perused the record and the decisions relied upon by them.
13. From the pleadings of the parties the following questions require deliberation in the instant petition:
(1) Whether this petition is maintainable?
(2) Whether the easementory rights of the petitioner are infringed?
(3) Whether the construction raised by Respondents Nos.5 to 8 requires action against them?
Whenever any public office fails to perform its public duty or right of any citizen is infringed, he has the remedy under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, to approach this Court for rederssal of his grievance. In the instant petition it is averred that since some fundamental rights of the petitioner are being infringed by the respondents Nos.5 to 8, the instant petition has been filed. Perusal of the record reveals that a number of applications were given by the petitioner to the official respondents with a request that since illegal construction has been raised by the respondents Nos.5 to 8 they may be restrained in this behalf. The official respondent have also admitted that the construction raised by the respondents Nos.5 to 8 is without approved plans. It is also an admitted fact that whenever an action is A taken against the said respondents Nos.5 to 8 by the official respondents for demolition of the illegal construction raised by them at each occasion the said process could not be culminated due to intervention of area people.
14. We were able to lay our hands on the decision given in the case of ARDESHIR COWASJEE AND OTHERS v. MIS. MULTILINE ASSOCIATES, KARACHI AND OTHERS (PLD 1993 Karachi 237) wherein it has been held that "a neighbor has the right to maintain a writ petition when enjoyment of right to his property is being violated by the respondent". It is also held in the said judgment that "a person claiming some statutory rights falls under the definition of the term "aggrieved person" and hence a writ petition is maintainable in this behalf". The decision relied upon by the learned counsel in the case of MIAN FAZAL DIN v. LAHORE IMPROVEMENT TRUST, LAHORE AND ANOTHER (PLD 1969 SC 223) the Hon'ble Supreme Court of Pakistan clearly stipulates as under:- "The right considered sufficient for maintaining a proceeding in Writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise."
15. In the case of SULEMAN MALA v. KARACHI BUILDING CONTROL AUTHORITY AND OTHERS (1990 CLC 448) also a learned Division Bench of this Court has observed that "where legal rights of a person are involved, writ petition is maintainable". We, therefore, answer the first question in affirmative thereby holding that the instant petition is maintainable.
16. So far as the claim of easementory rights of the petitioner are Concerned suffice to observe that counsel for the respondents Nos.5 to 8 has categorically stated during the course of arguments that the said respondents are ready to close down the windows and the drainage pipes to the satisfaction of the petitioner, hence we without entering into further deliberation decide this matter also in favour of the petitioner by directing the respondents to do the needful in accordance with law.
17. Now coming to the last segment of the petition with regard to the illegal construction raised by respondents Nos.5 to 8. It is seen that the official respondents have categorically stated that the respondents Nos.5 to 8 neither have any approved building plan in respect of the construction raised by them nor they have raised the said construction as per the Karachi Building and Town Planning Regulations. They have further stated that whenever demolition process was carried out by the official respondents each time a mob gathered at the spot comprising of ladies also who created law and order situation with the result that the demolition process could not be carried out.
18. We are of the view that when the official respondents have come to the conclusion that the construction raised by respondents Nos.5 to 8 is without approved plan and in violation of certain rules and regulations, they should act strictly in accordance with law. In our view it was the duty of the SBCA to have taken appropriate action at the very initial stage against the delinquent persons raising illegal construction. It is a bitter fact that whenever a construction is raised and is at initial stages the SBCA authorities remain idol and when the said construction is raised to a substantial extent thereafter the authorities wakeup from a slumber and take action either on their own or on the instructions of some legal proceedings when the matter becomes highly controversial. Had the SBCA Authorities taken the pains to take prompt action at the very beginning creation of unhappy situation like the one in the present petition would not have arisen. It is a high time that in such like matters the Administrator of SBCA should start taking appropriate action against the concerned delinquent officials for keeping mum and allowing the persons to raise illegal construction in their respective jurisdiction.
19. We, therefore, direct the SBCA to strictly adhere and abide by the provisions of Sections 6 and 7A of the SBCA Ordinance, 1979, and to take appropriate action in accordance with law. Time and again this Court in a number of judgments has observed that any construction raised in violation of SBCA Rules could not be termed as lawful and is liable to be demolished in accordance with law.
The authorities cited by the counsel for the petitioner and the counsel for SBCA squarely deal with these type of situations. The decision relied upon by the learned counsel for respondents Nos.5 to 8 in the case of ASMA BUILDERS (supra) is found to be distinguishable as in that decision the deviation was made by the builder from the building plan approved by the authorities and the Court held that this could entail action of demolition of unauthorized structure, whereas in the instant petition the very existence of approved plan has been denied by the official respondents.
The case of MUHAMMAD AMIN (supra) relied upon by the learned counsel for the respondents Nos.5 to 8 is also found to be distinguishable as in that case it was observed that "no action could be taken against building or its owner under any of the provisions of said Ordinance as provisions of Ordinance were not applicable to it" which in our view is not the case of the respondents Nos. 5 to 8.
Similar view was adopted in the case of Noor Muhammad (supra) wherein it was held that "SBCA Ordinance, 1979, is prospective in nature and not retrospective", which is not the subject matter of this petition.
20. In our view there could not be two opinions to the proposition that subject to regularization of the permissible construction raised by any person whatever illegal and unauthorized construction is raised by any person, the same has to be taken care of in accordance with law by the SBCA and whatever illegal construction beyond the permissible limit and the limit which comes under the ambit of regularization is being raised in an illegal and unauthorized manner the same has to be demolished by the SBCA Authorities. We, therefore, direct the SBCA to proceed against the respondents Nos.5 to 8 and if the structures raised by them are found to be unauthorized and illegal the same should be dealt with in accordance with law after issuing notice to all the parties.
21. We, therefore, in view of what has been stated above allow this petition by directing the official respondents to take appropriate action in accordance with law for removing illegal construction raised by the respondents Nos.5 to 8 and submit compliance report with the MIT of this Court within two months of the passing of this judgment.
22. The listed application also stands disposed of accordingly.