IRFAN SAADAT KHAN, J. These petitions have been filed by an individual, claiming himself to be a social worker, in respect of the alleged illegal constructions being carried out by some private respondents in Karachi Administration Employees Cooperative Housing Society (KAECHS) on the ground that the constructions raised by these private respondents/builders is in violation of the Karachi Building and Town Planning Regulations 2002 (KBTPR) and Sindh Building Control Ordinance, 1979 (SBCO), hence appropriate legal actions may be taken against these private respondents/builders in accordance with law. Since the main subject matter of all the petitions is the same these are being taken up together and disposed of through this common judgment.
2. For the sake of brevity the facts of each petition are discussed separately.
C.P. No.D-1928/2016 It is the contention of the petitioner that in the instant petition the private respondents Nos.7 and 8 have raised illegal construction on the plot bearing No.D-42, Block-4; KAECHS, Karachi.
C.P. No.D-8044/2017 It is averred in the instant petition that the private respondents Nos.5, 6 and 7 have raised illegal construction on plot bearing No.C-175, Block-4, KAECHS, Karachi. Interestingly private respondents in this petition are same as that in CP No.D-1928/2016.
C.P. No.D-1459/2022 It is contended in this petition that the private respondents Nos.5 and 6 have raised illegal construction on plot bearing No.B-220, admeasuring 450 square yards, in Block-3, KAECHS, Karachi.
C.P. No.D-1460/2022 It is stated in this petition that the respondents Nos.5 and 6 have raised illegal construction on Plot No.B-189, admeasuring 450 square yards, in Block-3, KAECHS, Karachi. Interestingly the respondents Nos.5 and 6 in this petition are same as that in C.P. No.D-1459/2022.
C.P. No.D-1461/2022 It is claimed in this petition that the private respondents Nos.5 and 6 have raised illegal construction on plot bearing No.B-190, admeasuring 450 square yards, in Block-3, KAECHS, Karachi.
C.P. No.D-2028/2021 It is averred in this petition that the private respondent No.1 has raised illegal construction on plot bearing No.C-224, Block-4, KAECHS, Karachi. Interestingly the respondent No.1 of this petition and respondent No.6 in CP Nos.D-1459/2022 and D-1460/2022 are the same person.
3. Notices in the instant petitions were issued to the official respondents as well as the private respondents. In some petitions the Nazir was also appointed for inspection, whose reports are available in those petitions.
4. M/s. Muhammad Mansoor Mir, Faran Sardar and Faizan Mansoor, Advocates, have appeared on behalf of the petitioner and stated that the private respondents, with the connivance of the Sindh Building Control Authority (SBCA) and other authorities are engaged in raising illegal constructions on the respective properties, mentioned in those petitions. They stated that from the Nazir's report, in some of the petitions, it is evident that the illegal constructions raised by those private respondents were duly found on the inspection of the site, moreover the SBCA have also through various reports furnished in those petitions have admitted violations but no action appears to have been taken by SBCA against those private respondents in respect of the illegal construction raised by them. They further stated that even in some petitions contempt of Court applications were moved and the Court has issued certain instructions on those applications but all such efforts have remained in vain as, according to the learned counsel, the private respondents are still raising construction on their respective properties, which may be stopped and violations, which are not regularizable, may be removed from those properties. They stated that the petitioner is a law abiding citizen and when he noted these violations in KAECHS thereafter he has filed these petitions, which are maintainable, therefore, all the petitions may be allowed by giving specific directions to the SBCA to remove those violations and to permanently stop the private respondents from raising illegal constructions on the respective properties. They further stated that the utility services provided by different agencies may also be withdrawn. In support of their arguments, the learned counsel have placed reliance on the decision, authored by one of us, namely, Irfan Saadat Khan J., in the case of Muhammad Idrees and another v. Government of Sindh and 2 others (C.P.
No.D-4634 of 2019).
5. M/s. Muhammad Nouman Jamali, Abdul Razzaq and Muhammad Ahmer, Advocates, have appeared on behalf of the private respondents and at the very outset stated that the petitioner is a habitual filer of petitions. They stated that the petitioner in fact is a blackmailer who used to malign and harass the persons engaged in construction in KAECHS. They stated that there are several criminal complaints lodged against the petitioner for his nefarious activities. The counsel have also placed reliance on certain whatsapp chats of the petitioner with the officials of SBCA to prove that it is the modus operandi of the petitioner and his son, working as an officer in FIA, to contact the owner/builder engaged in construction in KAECHS and in case of failure of negotiations of the petitioner or his sons with the said owners/builders then they file frivolous and tainted petitions to harass those persons and in case of any settlement between the petitioner and those owners/builders they used to either withdraw the said petitions or do not appear in those petitions with the result that those petitions used to be dismissed on account of non-prosecution. They have invited our attention to various petitions filed by the petitioner on the same subject matter and have given numbers of those petitions also which were called examined and perused by us. They, therefore, stated that all these petitions have been filed with mala fide intention and the petitioner has approached the Court with unclean hands, therefore, the same are liable to be dismissed with heavy fine, penalty/cost and instructions may be issued that in future petitions of like nature filed by either petitioner or anyone of his family members may not be entertained by the office.
6. Apropos, the facts of the petitions are concerned, learned counsel for the private respondents stated that from the Nazir's report and the report furnished by the SBCA though some minor violations were found on the respective properties but according to them these violations are firstly regularizable and secondly the private respondents are willing to remove those violations in accordance with law. They also stated that from the reports of the SBCA it would also be seen that no construction whatsoever is being carried out on those properties, after passing of the interim order by this Court. They further stated that mala fide on the part of the petitioner is evident from the fact that in order to hide his identity he has filed some petitions under the name 'K.M. Awan' and some as 'Khawaja Muhammad Awan', which amply proves that he has approached the Court with extraneous reasons to blackmail and exasperate the private respondents and to extract gratification from them, in case they agree to his terms. They finally submitted that in view of the facts mentioned by them these petitions merit dismissal with heavy cost. In support of their arguments the learned counsel have placed reliance on the following decisions: i) Muhammad Maqsood Sabir Ansari v. District Returning Officer, Kasur and others (PLD 2009 Supreme Court 28) ii) Muhammad Sharif v. Mst. Zubaida Begum and others (1983 SCMR 1197) iii) Sardar Muhammad v. Deputy Administrator, Residual Property and another (1981 SCMR 738) iv) Multilane Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 Supreme Court 423) v) Nighat Jamal v. Province of Sindh and others (2010 AR 2624) vi) Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others (1999 SCMR 2883) vii) Standard Chartered Bank Limited through Constituted Attorney v. Karachi Municipal Corporation through Administrator and 9 others (2015 YLR 1303)
7. Mr. Dhani Bux Lashari Advocate has appeared on behalf of the SBCA and stated that there are violations available on the respective properties. He, however, submitted that if proper application for regularization of those violations, within permissible limit, is filed by the private respondents, the same would be considered by his department and needful would be done in accordance with law.
He, however, stated that no construction is being carried out on the respective properties after the interim order has been passed by this Court. He finally stated that whatever order is passed by this Court would be complied with in letter and spirit.
8. Mr. Saifullah, AAG has adopted the arguments of Mr. Dhani Buz Lashari.
9. On the respective dates of hearing, nobody has appeared on behalf of the KMC, KECHS, SSGC and K-Electric.
10. We have heard all the learned counsel at considerable length and have also perused the record, Nazir's reports, reports furnished by SBCA, the relevant law and the 1ecisions relied upon by the learned counsel for the parties.
11. We will first take up CP No.D-1928/2016. In the said petition two main allegations were leveled against the private respondents that they have bifurcated the plot bearing No.D-42 into two plots as D-42 and D-42/1 and that the construction raised on the said property is illegal. The record reveals that the plot No.D-42 is a 950 square yards plot. The private respondents applied for its bifurcation into 550 and 400 square yards respectively. No objection from KAECHS is available on the record, map is available, publication for the said bifurcation and other relevant documents are also available on the record, from which its bifurcation in a legal and lawful manner has been shown. Nazir's report also endorsed the bifurcation of the property, however with slight modification of the area of the plots, as 425 squares yards instead of 550 and 425 square yards instead of 400 square yards. As per Rule 18-3-1.3 of the KBTPR subdivision of a residential plot will only be considered to the extent that subdivided plot should not be less than 400 square yards. Hence in these circumstances even if for arguments sake it is assumed that the plots were not 550 and 400 square yards but after the subdivision of the plot D-42 into D-42 and D-42/1 its area comes to 425 square yards, which is within the permissible limit, as mentioned under Rule 18-3-1.3 of the KBTPR.
Hence so far as this aspect is concerned since the division of the plot is within the permissible limit hence no adverse inference is drawn against the private respondents and the petition to this extent stands dismissed.
12. So far as the allegation with regard to illegal construction on sub-divided plots D-42 and D-42/1 is concerned, the record reveals that the SBCA has already taken action against the private respondents in respect of the violations noted by them by issuing ejectment notice under Section 7A of the SBCO and letters have also been written to the utility agencies and the Sub-Registrar for taking legal action against the said private respondents. We, therefore, under the circumstances, direct the concerned Deputy Director, District East, SBCA, Karachi to pursue the ejectment notice and the letters written to the utility agencies and the Sub-Registrar so that the violations noted by them should be removed by the private respondents in accordance with law. The SBCA officials in this regard are directed to furnish compliance report to the MIT-II within a period of one month's time from the date of receipt of this order.
13. In C.P. No.D-8044/2017, it is alleged that the private respondents have made illegal construction on plot No.C-175, Block-4, KAECHS, Karachi. In the instant case it is noted that the permission for construction was given to the private respondents for Ground + 1st floor only whereas they have made the construction up till Ground + 3rd floor and have also illegally made some portions on the said property. From the comments/report of the SBCA the violations have duly, been noted and action with regard to ejectment notice under Section 7A of the SBCO, letters to the utility agencies and Sub-Registrar have already been taken. The SBCA report also indicates that no construction activity is being carried out on the said property. We, therefore, under the circumstances, direct the concerned Deputy Director, District East, SBCA, Karachi to pursue the ejectment notice and the various letters written to the utility agencies and the Sub-Registrar so that the violations noted by them should be removed by the private respondents in accordance with law. The SBCA officials in this regard are directed to furnish compliance report to the MIT-II within a period of one month's time from the date of receipt of this order.
14. We will now take up C.P. No.D-1459/2022. The said petition was filed on the ground that the respondents Nos.5 and 6, who are also owners of the plot, have raised illegal construction on plot No.B-220, admeasuring 450 square yards, in Block-3, KAECHS, Karachi, by raising construction on Ground +3 floors without approval of the SBCA and have constructed 04 separate units/portions on each floor for commercial use and in spite of the fact that several complaints were made by the petitioner to the respective authorities no action was taken by those authorities against the said respondents Nos.5 and 6. Nazir's report dated 11.10.2022 also reveals that a plot of Ground + 4 floors was found on the site, which was in finished condition and 10 doorbells/intercoms, 08 K-Electric sub-meters, with one main meter, 02 SSGC meters with 08 inward connections were found on the property. There were 03 gates on the said property, one for the flats at ground floor and the other gate for the flats on upper floors and the 3rd gate for ramp. The Nazir has also attached photographs of the said property. As per SBCA's report construction on 21, 3rd and pent house on 4th floor was made without approval. The property was in occupied condition; however no fresh construction on the site was found out. The SBCA has already taken action against the private respondents with regard to the violations noted by them by issuing ejectment notice under Section 7A of the SBCO and letters have also been written to the utility agencies and the Sub-Registrar for taking legal action against the said private respondents. We, therefore, under the circumstances, direct the concerned Deputy Director, District East, SBCA, Karachi to pursue the ejectment notice and the letters written to the utility agencies and the Sub-Registrar so that the violations noted by them should be removed by the private respondents, in accordance with law. The SBCA officials in this regard are directed to furnish compliance report to the MIT-II within a period of one month's time from the date of receipt of this order.
15. The facts of C.P. No.D-1460/2022 are akin to the petition bearing C.P. No.D-1459/2022 with the only modification that in CP No.D-1459/2022 the property under consideration was plot bearing No.B-220, whereas in the petition bearing C.P. No.D-1460/2022 the property under consideration was plot No.B-189. Nazir's report dated 11.10.2022 is same as that given in C.P. No.D-1459/2022. The report of SBCA is also same as given in C.P. No.D-1459/2022. The record reveals that the SBCA has already taken action against the private respondents with regard to the violations noted by them by issuing ejectment notice under Section 7A of the SBCO and letters have been written to the utility agencies and the Sub-Registrar for taking legal action against the said private respondents.
We, therefore, under the circumstances, direct the concerned Deputy Director, District East, SBCA, Karachi to pursue the ejectment notice and the letters written to the utility agencies and the Sub- Registrar so that the violations noted by them should be removed by the private respondents in accordance with law. The SBCA officials in this regard are directed to furnish compliance report to the MIT-II within a period of one month's time from the date of receipt of this order.
16. In C.P. No.D-1461/2022 the petitioner has challenged the illegal construction raised on plot No.B- 190, admeasuring 450 square yards, in Block-3, KAECHS, Karachi. No Nazir's report is available in the instant matter; however the SBCA has mentioned violations of illegal constructions made on 2nd and 3rd floor and presence of multiple units/portions on the said property. In the instant matter also same instructions as that given in above referred petitions are given to the SBCA for compliance.
17. In the petition bearing C.P. No.D-2028/2021 the petitioner has challenged the construction raised on plot No.C-224, Block-4, KAECHS, Karachi. As per Nazir's report, dated 21.05.2021, basement, ground floor and 1st floor were found. The ground floor of the said property comprised of 05 portions. While on 1st floor also 05 portions were found, meaning thereby in all there were 10 portions on the said property and all of them were occupied. There were 04 separate entrances on the property with a common overhead water tank. The construction on the said property was found to be old type. The Nazir found internal deviations in the approved building plan. The deviation of Compulsory Open Space (COS) was also found. At the time of inspection no construction was being carried out. Photographs were also attached by the Nazir along with his port. The respondent has also filed objections to the Nazir's report that the violations noted by the Nazir were not correct as, according to the respondent, the construction was raised as per the approved plan set out by the SBCA itself. According to the respondents the COS was within the permissible limit and the minor deviations, if any, were internal, in respect of which no adverse inference could be drawn and these deviations, if any, are regularizable. In the report of the SBCA dated 16.09.2022 the violations with regard to COS and changes in internal planning have been noted. However in the said report it has categorically been mentioned that neither any illegal floor has been constructed nor any fresh construction has been made by the respondent. In the report of the SBCA it has also been mentioned that proposed building plan has been submitted through licensed architect after fulfillment of all codal formalities and approval of the competent authority i.e. DG, SBCA for the said proposed plan for basement + ground + 1st floor was also granted vide letter dated 14.12.2020, in favour of the respondent. We, therefore, in view of the facts obtaining in the instant matter, once again direct the SBCA to take appropriate legal action, as provided under Section 7A and 19 of the SBCO, as the case may be, in accordance with law and to remove whatever illegal construction, which is not regularizable against the respondent No.1 and to furnish compliance report within one month of the receipt of this order with the MIT-II.
18. It may further be noted that it is beyond comprehension that the illegal construction, if any, raised by the private respondents was without the concurrence of the SBCA officials. We would like to reproduce herein below the observations made by one of us, namely, Irfan Saadat Khan J. in the decision given in CP No.D-49/2019 (supra):
9. However, before parting with the order, we would like to observe that it has now become a rampant practice of the SBCA authorities to keep mum while any construction is being carried out on any building, and the department only comes into action when a matter is brought to the knowledge of a court and some directions are issued by the court in this regard. Here a question would arise as to when any Illegal construction is being raised by some evil doers why no action is being taken by the concerned Directors, Deputy Directors and Inspectors of the SBCA authorities.
In our view, the answer to this question is quite obvious; until and unless there are some extraneous considerations which keep these concerned Directors, Deputy Directors and Inspectors away from the illegal constructions being raised by those evil doers pertaining to their area. It is beyond imagination that any building or project could be completed without its proper surveillance, inspection, etc. This clearly denotes that the concerned Directors, Deputy Directors and Inspectors are hand in gloves with those persons who are engaged in making illegal construction, otherwise, in our view, had there been a proper vigilance and surveillance by these officials, there would not have been a question of raising any illegal construction whatsoever.
Hence, the Director General (DG), SBCA, is directed to take appropriate legal action against those officials in whose area any building/project is constructed without there being proper approved building plan which is not in accordance with law and the rules and regulations. We are sanguine, if two or three officials of the department are taken to task or appropriate disciplinary action, which may include the suspension and termination in accordance with law, is carried out and exemplary punishments are awarded to those officials, matters regarding illegal construction, etc. in an area of particular Directors, Deputy Directors and Inspectors could be controlled. In our view, it is the responsibility and duty of the DG to secure the goodwill of his department by taking prompt and timely actions. Let a copy of this order be sent to the Chief Secretary, Home Secretary and DG, SBCA, for information and compliance.
19. It may further be noted that in case of demolition or removal of violations by the SBCA. if any, loss is likely to be caused to those persons also who are not respondents in the instant matter and are occupying portions in some of the properties, in our view those persons may seek their remedy in accordance with law against the private respondents/builders, as the case may be, in accordance with law.
20. Before parting with the order we would like to observe that the petitioner and some of the private respondents arc at daggers drawn with each other and have filed counterblast cases against each other. At one hand the petitioner has filed petitions bearing C.P. No.D-1459/2022, D- 1460/2022 and D-2028/2021 against the respondent Mubashir son of Anwar Saeed, on the other hand the said respondent has filed criminal complaint, registered FIR, made complaints to Rangers, FIA and other government agencies in respect of the harassment being caused by the petitioner or his son to them and the petitioner is either facing some criminal cases or has been acquitted in some of them. Though the petitioner has also leveled allegations against the Nazir of this Court or SBCA to be having soft corners against the respondents but no concrete evidence in this regard has been produced rather from the facts it is noted that the Nazir of this Court as well as SBCA have categorically noted violations made by the respondents. Hence this objection of the petitioner so far as the Nazir's and SBCA having soft corners is concerned is ill founded.
21. The record also reveals that FIR bearing No.186/2021, under Sections 384, 385, 386, P.P.C. read with Section 7 ATA and FIR bearing No.146/2012 under Sections 489-F, 420, 34, P.P.C. have also been filed against the petitioner but these FIRs have already been disposed of in favour of the petitioner.
The record also reveals that some action with regard to extortion of money by the petitioner was also taken by PS Teepu Sultan. It is also noted that the petitioner previously tiled petition bearing C.P. No.D-461/2018 against the owner of plot bearing No.C-175, Block-4, KAECHS, Karachi for illegal construction, which petition was dismissed on account of non-prosecution. Similarly a petition bearing No.D-1314/2004 was also filed in respect of the owner of property bearing plot No.C-226, Block-4, KAECHS, Karachi for illegal construction and another petition bearing C.P. No.D-1092/2004 was also filed by the petitioner in respect of the same subject matter and both these petitions were dismissed as not pressed. Petition bearing C.P. No.D-465/2015 was also filed by the petitioner for the illegal construction being made by the respondents Nos.1 and 2 on the property bearing plot No.C-126, Block-4, KAECHS, Karachi which too was disposed of vide order dated 31.03.2015 on the ground that civil suit on the same subject matter was filed by the petitioner hence no action was required. In the said petition a contempt application was also moved bearing CMA No.14535/2015, which too was dismissed on account of non-prosecution. The record also reveals that a suit bearing No.80/2005 was also filed by the petitioner (plaintiff in that suit) against some private defendants for illegal construction on plot No.155-C, Block-4, Karachi, which was disposed of vide order dated 09.03.2006 on the ground that the grievance in the said suit has been redressed and thereafter on the request of the parties in that suit the matter was disposed of. A suit bearing No.1638/2015 was also filed by the present petitioner (plaintiff in the matter) against some defendants against whom C.P. bearing No.D-465/15 was also tiled and that suit was also disposed of as withdrawn.
22. From the above factors it is evident that the petitioner is a habitual filer of petitions/suits etc. The petitioner has filed these petitions and suits by claiming himself to be a social worker. In order to ascertain whether the petitioner is a social worker or not, learned counsel for the petitioner were directed to attach his profile to show what social works were performed by him during the last five years along with tax documents as well as registration certificate for such social welfare organization, if any. However, on the next date of hearing learned counsel appearing for the petitioner candidly conceded that the petitioner is not a social worker but has been filing the petition as public interest litigation. They have also conceded that they do not have any document to show and to prove with regard to any social work being conducted by the petitioner. The record further reveals that the petitioner has stated that he is an aggrieved person, as due to the construction made by the private respondents his property is affected. From the record it is apparent that the petitioner resides in Block-4, whereas the respondents in C.P. No.D-1459/2022, D- 1460/2022 and D-1461/2022 resides in other Blocks. The respondents in C.P. Nos.D-1928/2016, D- 8044/2017 and D-2028/2021 do have their plots in Block-4 but cannot be considered to be in the vicinity of the plot of the petitioner as the address of petitioner's property is C-140, whereas in CP No.D-1928/2016 the plot number is D-42, in C.P. No.D-8044/2017 plot number is C-175 and in C.P.
No.D-2028/2021 plot number is C-224. Hence from the locations of the impugned plots it can neither be pleaded nor averred that the impugned plots are in the vicinity of the petitioner's property and their construction would affect the property of the petitioner. Serious allegations have also been leveled against the petitioner by the respondents with regard to extortion of money from those builders who try to raise construction in KAECHS. However since we are dealing with the facts of the present petitions hence would not comment on this aspect.
23. During the course of arguments, we even asked a question from the petitioner that from where he is managing to pay the fees of the lawyers, Nazir's fees etc. and other ancillary expenses/charges as from the income tax documents furnished by him it reveals that his major source of earning is from pension which is Rs.60,000/- per month only. To this query the petitioner replied that no doubt his pension is Rs.60,000/- per month but his family members support him.
This statement of the petitioner also cast doubt about his bonafide in filing the instant petitions.
The respondents have also placed on record Whatsapp chats along with a USB regarding the conversation of petitioner with some SBCA officials but in our view that requires forensic examination, hence we do not find any reason to dilate upon this issue in these petitions. The respondents may, however, if deemed necessary, may seek appropriate legal remedies against the petitioner as provided to them under the law.
24. The upshot the above discussion is, all the above petitions stand disposed of in the manner and mode indicated above. However, a note of caution is issued that if the petitioner or any one of his family members desires to file suit/petition etc. in respect of illegal construction, if any, raised by the private persons/builders in KAEHS or for any other area it would be incumbent upon them to attach a copy of this judgment in the said suit/petition etc. so that the Court/Bench/Judge dealing with the matter would have some idea about the conduct of the petitioner or his family members, in like matters.