' MAMOON KAZI, J.---The petitioners reside in Frere Town Area of Karachi where the respondent No,1 a partnership firm, has been permitted by Karachi Building Control Authority, the respondent No, 2, to build a multistoreyed building consisting of nine floors besides the ground floor, on plot bearing Survey No,18, Survey Sheet No, F.T.-3, in the name of "Spring Field Apartments".
2. The respondent No,1 had originally sought approval for construction of eleven storeys on the said plot, however, as the said respondent had requested for a plot ratio of .1:4 against the ratio of 1:2, permitted by the Karachi Buildings and Town Planning Regulations (hereinafter referred to as "the Regulations"), the Director General, K.D.A. Objected to the construction of the said building.
Nevertheless, on the 2nd October, 1990, the respondent No,2, approved the first respondent's plans for construction of the building with minor modifications. However, the approval was made subject to permission by the Karachi Metropolitan Corporation.
3. Thereafter, the respondent No,1 approached the Karachi Metropolitan Corporation for permission but the same was declined as, only ground floor and two upper storeys were permissible on the said plot. The proposed construction, was also objected to on the ground that it would badly disturb the structure of services such as, water drainage, electricity and sui gas. However, the respondent No, 1 started construction on the said plot notwithstanding the said objections or protests made by the residents of the area.
4. But on 14-8-1990 a general order was issued by the Government of Sindh purportedly in exercise of its powers under subsection (5) of section 6 of the Sindh Buildings Control Ordinance, 1979 whereby all the building plans and No-Objection Certificates approved or issued between 1-12- 1988 and 5-8-1990 for construction of high-rise buildings had been cancelled with immediate effect.
5. The said order was challenged by the respondent No,1 in the Civil Court, but during its pendency the former succeeded in obtaining a favourable order from the then Chief Minister of Sindh on 21- 8-1991 as he recommended that the case of the said respondent be processed as a "special case".
6. Thereafter, on 27-10-1991, the building plans of the respondent No,1 were approved after the respondent paid charges of Rs, 10,26,365 to the concerned authorities. In the meanwhile, the suit filed by respondent No, 1 against the respondent No,2 was also withdrawn.
7. The petitioners are aggrieved because the respondent No,1 was proceeding with the construction in absolute contravention of the Regulations and the respondents Nos. 2 and 3 were collaborating with the said respondent in the said unlawful act.
8. The case on behalf of the petitioners has been argued by Mr. Naimur Rehman whereas Mr. S. Sharifuddin Pirzada has addressed us on behalf of the respondent No,1. The learned Counsel was assisted by Mr. J.H. Rahimtoola and Mr. Ismail Merchant. Mr. Iqbal Memon and Mr. K.M. Nadeem have appeared on behalf of the respondents Nos.2 and 3 respectively. However, they have not addressed us on the questions involved in the case but have adopted the arguments advanced by Mr. Pirzada.
9. The main contentions of Mr. Naimur Rehman have been that, relevant provisions of the said Regulations have been flagrantly violated by respondents Nos.2 and 3 as permission has been granted to respondent No, 1 to construct nine floors besides the ground floor against two plus ground floor, permitted by the Regulations in Frere Town Area. The said respondents have also permitted other deviations from the said Regulations and the building plans as originally approved, as compulsory open space was permitted to be occupied by the said construction. Even approval of the Karachi Metropolitan Corporation, the lessor of the plot in question, was not obtained by the respondent No,1. Article 14 of the Constitution which guarantees privacy of home, has also been violated by the respondents. Mr. Naimur Rehman has further argued that no prior notice was served upon the residents of the area by the respondents Nos.2 and 3 without which no major alteration in the Regulations could be lawfully permitted by them. Furthermore, according to the learned Counsel, procedure prescribed by clause 4(a) embodied in Schedule D to Part-II of the said Regulations was also not followed by the said respondents. The learned Counsel has also called in question the order passed by the then Chief Minister, dated 21-8-1991, whereby approval was accorded to the building plans submitted by the respondent No,1. In the first instance, the Chief Minister had no lawful authority to grant such approval in clear violation of the Regulations, and secondly, in any case discretion was not properly exercised by him.
10. Although there appears to be no controversy in regard to the fact that, major deviation from the said Regulations was permitted by respondents No,2 and 3, but the contention of Mr. Sharifuddin Pirzada has been that construction of the building in question has been permitted under the orders of the respondent No,3 which is a competent authority in this regard. Although deviations have been permitted and irrgularities have been committed by the respondent No,1, but the same, accordingly to the learned Counsel, can be lawfully compounded by respondents No, 2 and 3 with the said respondent. The Karachi Metropolitan Corporation, the lessor of the plot, has also waived its objection during the pendency of the petition. As regards the alleged violation of Article 14 of the Constitution by the respondent No,1, it has been argued that, the said Article cannot be pressed into service by the petitioners as no violation of any fundamental right is involved in the present case. Reference in this regard has been made to the case of Mst. Zubaida v. Messrs Pakistan State Oil House (C.P. No, D-210/91), decided on 26-2-1991 by a Division Bench of this Court, wherein it was held that right of privacy was not available to the petitioner who was living at a distance of about help a kilometre from the proposed multistoreyed building. As regards the alleged infractions of the provisions of clause 4(a) in Schedule D to the said Regulations, the contention of Mr. Pirzada has been that the plot in question was a residential plot and continues to be so, therefore, there being no question of conversion of the plot from residential to commercial, the said clause cannot be invoked in the present case. There was also no question of violation of any principle of natural justice because discretion has been exercised by the authorities fairly and properly. An objection has also been raised by the learned Counsel as to the maintainability of the present petition as the same, accordingly to the learned Counsel, suffers from laches. In the end, it was argued that the petitioners have no locus standi to file the petition as they are not aggrieved persons within the meaning of Article 199 of the Constitution.
11. In support of his last contention. Mr. Sharifuddin Prizada has pointed out that none of the petitioners resides in the close vicinity of the site of the property in question. Consequently, none of them has either any right to privacy or anyone of them is an "aggrieved party" so as to claim locus standi to file the present petition.
12. It is pertinent to point out in this connection that, there appears to be no controversy in regard to the fact that all the petitioners reside in the Frere Town Area where, as pointed out earlier, the proposed building is being constructed. On behalf of petitioners No 3 to 5, it has been contended that they reside on the same road on which the building in question is situated 'and any violation of the said Regulations would affect all the petitioners equally.
13. The question as to locus standi of a person to challenge violation of housing scheme or regulation by a Constitutional petition was considered by the Supreme Court of Pakistan in the case of Mian Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223. In this, case question arose, whether the petitioner had a right to object to an alteration made in a town planning scheme framed by the Lahore Improvement Trust simply on account of the reason that, the petitioner was a resident of the same area where the alteration had taken place. It was held that although the petitioner did not have a right in the strict juristic sense to maintain a writ, but it would be enough for the petitioner to disclose that he had a personal interest in the performance of a legal duty which, if not performed or performed in a manner not permitted by law, would result in loss of some personal benefit or advantage to the petitioner. It was further held that alteration of the said scheme had resulted in deprivation of the facility available to the petitioner and consequently, a valuable right was conferred on the petitioner to maintain a writ petition.
14. Although this case appears to provide a complete answer to the objection raised by Mr. Sharifuddin Pirzada, but the contention of the learned Counsel is that the ratio laid down by the Supreme Court in Fazal Din's case is not applicable to the present case as in the said case the plot in question was an amenity plot. According to the learned Counsel, writ jurisdiction of the High Court cannot be invoked by a professional litigant or a "meddlesome interloper" in matters that do not concern him. Reliance has been placed by Mr. Pirzada on De Smith's Judicial Review of Administrative Action (4th Edn.), where at page 409, the rule has been stated thus: "All developed legal systems have had to face the problem of adjusting conflicts between two aspects of the public interest -- the desirability of encouraging individual citizens to participate actively in the enforcement of the law, and the undesirability of encouraging the professional litigant and the meddlesome interloper to invoke the jurisdiction of the Courts in matters that do not concern him. The English common law dealt harshly with those who maintained others to institute civil proceedings in which they themselves had no direct interest: ad se non pertinent. (co.
Inst. Ii, 208)"
' Similar view has been expressed by the learned author at page 418 which is as follows:-- "Whereas most of the cases on prohibition have arisen out of proceedings originally instituted before Courts strict sensu, the locus standi required of an applicant for certiorari has often arisen in the general field of administrative law. But most of the decisions have failed to provide a full exposition of the relevant principles and many of the dicta are ambiguous. It is not even clear how far the rules relating to prohibition are applicable to certiorari.
' There are numerous dicta to the effect that a "strange' may be awarded certiorari. On the other hand, there is no reason for doubting the soundness of Lord Denning's observation that the Court "would not listen, of course, to a mere busybody who was interfering in things which did not concern him"; and in no reported English case has an application brought by such a person been successful. It is thought that the present law may properly be stated as follows. Certiorari is a discretionary remedy, and the discretion of the Court extends to permitting an application to be made by any member of the public. A person aggrieved, i,e, one whose legal rights have been infringed or who has any other substantial interest in impugning an order, may be awarded a certiorari ex debito justified if he can establish any of the recognised grounds for quashing; but the Court retains a discretion to refuse his application if his conduct has been such as to disentitle him to relief. Only in highly exceptional circumstances would the Court exercise its discretion in favour of an applicant who was not a person aggrieved."
' Reference has also been made by Mr. Pirzada to "LOCUS STANDI AND JUDICIAL REVIEW" by S.M. This, where the learned author at page 98 has observed as under:-- "The Court will not listen, of course, to a mere busybody who was interfering with things which did not concern him. But it will listen to anyone whose interests are affected by what has been done just as it did in Greenbaum's case."
' It has again been observed by the said learned author at page 99 of the said book: "It is interesting to note that both the New Zealand and Malaysian Courts have required a certiorari applicant to be an aggrieved person -- in Walsh v. Social Security Commission (1959) N.Z.L.R. 1113 the New Zealand High Court denied a husband standing to challenge an order of the defendant commission, granting the applicant's wife a deserted wife's benefit on the ground that he had failed to establish that his personal or private rights--and not merely his general interest as a member of the public--had been affected.
' In District Council Centre, Province Wellesley v. Uegappah (1966) 2 M.L.J. 177 the Malaysian High Court denied a land owner standing to apply for certiorari to quash an order of a Municipal Council approving certain building plans for a housing scheme on adjacent land.
' The Privy Council has also joined the ranks of those cases imposing a stricter interest requirement in certiorari applicants by its decision in Durayappah v. Fernando (1967) 2 A.C.
337. However, it added a new dimension to the locus standi problem by introducing the distinction between void and voidable decisions; a voidable decision being avoidable by one against whom the decision was made and a void decision by any person with a legitimate interest. This rules out the institution of review proceedings by strangers even where there is a total want of jurisdiction
15. However, in Regina v. Paddington Valuation Officer ex parte Peachey Property Corporation Ltd.
(1966) 1 Q.B. 380 Lord Denning appears to have taken a more liberal view. It was observed by him that:- "The question is whether the Peachey Property Corporation are `persons aggrieved' so as to be entitled to ask for certiorari or mandamus. Mr. Blain contended that they are not persons aggrieved because, even if they succeeded in increasing all the gross values of other people in the Paddington area, it would not make a pennyworth of difference to them.... But I do not think grievances are to be measured in pounds, shillings and pence. If a ratepayer or other person finds his name included in a valuation list which is invalid, he is entitled to come to the Court and apply to have it quashed. He is not to be put off by the plea that he has suffered no damage, any more than the voters were in Ashby v. White. The Court would not listen, of course, to a mere busybody who was interfering in things which did not concern him. But it will listen to anyone whose interests are affected by what has been done So here it will listen. To any ratepayer who complains that the list is invalid'.
' This was afterwards approved by the House of Lords in Arsenal Football Club v. Ende (1977) 2 WLF
974. (Also see Discipline of Law, by Denning, pp. 115 & 116)."
16. However, a somewhat different view was taken by the Queens Bench Division in Gregory and another v. London Borough of Camben (1966) 2 All. E.R.
196. The plaintiffs in this case were the owners and occupiers of two houses at the back of which was a large open space forming part of the grounds of a convent. The defendants, the Local Planning Authority, granted planning permission to the trustees of the convent to erect a large new school in the convent grounds and, later for a second means of access to which would have probably affected amenities of the plaintiffs' houses, as many hundreds of pupils might have used such access and passed close to them. The plaintiffs brought an action for a declaration that the grants of planning permission were ultra vires the defendants' powers. On a preliminary issue, whether the plaintiffs had a right to ask for the declaration it was held that they had no status to claim as against the defendants' declarations that the grants of planning permission were ultra vires. For what was taking place on the land behind plaintiffs' houses was something in regard to which, as bey/teen the plaintiffs and the trustees of the convent, there were no legal rights.
17. Mr. Pirzada while referring to the case of Shri Sachidanand Panday v. The State of West Bengal AIR 1987 SC 1190 has pointed out that, even in neighbouring India, which was the first to open its doors to public interest litigation, a need is now being felt to arrest unrestricted flow of cases under the said system. The learned Counsel has referred to the following observations made by the Supreme Court of India in this regard: "58. My purpose in adding these few lines of my own is to highlight the need for restraint on the part of the public interest litigants when they move Courts. Public interest litigation has now come to stay. But one is led to think that it poses a threat to Courts and public alike. Such cases are now filed without any rhyme or reason. It is, therefore, necessary to lay down clear guidelines and to outline the correct parameters for entertainment of such petitions. If Courts do not restrict the free flow of such cases in the name of Public Interest Litigation, the traditional litigation will suffer and the Courts of law, instead of dispensing justice, will have to take upon themselves administrative and executive functions.
59. I should be not understood to say that traditional litigation should stay put. They have to be tackled by other effective methods, like decentralising the judicial system and entrusting majority of traditional litigation to village Courts and Lok Adalats without the usual populist stance and by a complete restructuring of the procedural law which is the villain in delaying disposal of cases.
60. It is only when Courts are apprised of gross violation of fundamental rights by a group or class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the Courts, especially this Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. I will be second to none in extending help when such help is required. But this does not mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self-imposed restraint on public interest litigants."
18. Mr. Naimur Rehman, learned Counsel for the petitioners has however, contended that the traditional view taken by the Courts in regard to the expression "aggrieved person" cannot be invoked where the petitioner has sought enforcement of a fundamental right or where, there is an element of public importance in the case. The fundamental right which, according to the learned Counsel, has been infringed in the present case, is guaranteed by Article 14 of the Constitution which lays down that "the dignity of man and, subject to law, the privacy of home, shall be inviolable". Support has been sought by the learned Counsel firstly from the case of Miss Benazir Bhutto v. Federation of Pakistan and another, reported in PLD 1988 SC 416. An objection was taken in this case that the rights which could be enforced by the Court must ordinarily be the rights of the petitioner himself who claims infraction of those rights and approaches the Court for relief. The objection was, however, overruled and some of the observations made by the Court while overruling the objection which appear at page 483 of the report are as follows:-- "Here I may refer to a case reported as Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223, wherein it was held that the right considered sufficient is not necessarily a right in the strict juristic sense but it is enough if the petitioner discloses that he had 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. There is thus, a departure from the earlier rigid notion of a legal right to exist as a pre- condition for maintaining the application for Constitutional redress."
' Again, at page 486 it has been further observed: "Another important question mooted for consideration is as to whether the requirement of an "aggrieved party" is spelt out from Article 184 (3) of the Constitution. The submission of the learned counsel for the petitioner was that the word "aggrieved" does not find mention in this sub-Article, and, therefore, it cannot be read into it while that of the learned Attonery-General was that the jurisdiction conferred on the Supreme Court under Article 184(3) is co-terminus with that bf Article 199 which by its sub-Articles 1(a) and 1(c) envisaged the application to be made by an "aggrieved party" and that this requirement should also be read into Article 184(3). In support of his contention, the learned Attorney-General relied on Ch. Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66, Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657 and Charanjit Lal Chowdhury v. The Union of India and others AIR 1951 SC 41."
' In the result, it was concluded by the Supreme Court as under:-- "Taking the discussion further, this Article does not say as to what proceedings should be followed, then whatever be its nature must be judged in the light of the purpose, that is, the enforcement of any of the Fundamental Rights. It is, therefore, permissible when the lis is between an aggrieved person and the Government or an authority to follow the adversary procedure and in other cases where there are violation of Fundamental Rights of a class or a group of persons who belong to the category as afore stated and are unable to seek redress from the Court, then the traditional rule of locus standi can be dispensed with, and the procedure available in public interest litigation can be made use of, if it is brought to the notice of the Court by the person acting bona fide. On the language of Article 184(3), it is needless to insist on a rigid formula of proceedings for the enforcement of the Fundamental Rights. If the framers of the Constitution had intended the proceedings for the enforcement of the Fundamental Rights to be in a strait-jacket, then they would have said so, but not having done that, I would not read any constraint in it. Article 184(3) therefore, provides abundant scope for the enforcement of the Fundamental Rights of an individual or a group or class of persons in the event of their infraction. It would be for the Supreme Court to lay down the contours generally in order to regulate the proceedings of group or class of actions from case to case."
' The same appears to be the ratio of another judgment of the Supreme Court in I.A. Sharwani v.
Government of Pakistan 1991 SCMR 1041.
19. Mr. Sharifuddin Pirzada has, however, pointed out that the right of privacy guaranteed under Article 14 of our Constitution is comparable to similar provisions embodied in Fourth Amendment to the American: Constitution which guarantees inviolable right of the American people to be secure in their houses. Reference in this regard has also been made to Irish Constitution which equally protects such right of the citizens by laying down that "the dwelling of every citizens is inviolable".
However, Article 14 of the Constitution has been interpreted by our Courts as also embodying within itself the Islamic concept of purdah. Reference in this respect may be made to Suleman Mala v.
Karachi Building Control Authority (1990 CLC 448), Akhtar Hamid Ghori v. Messrs Saima Estate Developers (1989 CLC 2173) and Mst. Sardar Begum Faruqui v. Rashida Khatoon (1980 CLC 83). The Islamic concept of privacy of home is embodied in the Holy Quran, in Surah An-Nur, verses 27 and
28. In the said verses it has been ordained: "27. 0 ye who believe: ' Enter not houses other than ' Your own, until ye have ' Asked permission and saluted ' Those in them: that is ' Best for you, in order that ' Ye may heed (what is seemly).
28. If ye find none ' In the house, enter not ' Until permission is given ' To you: if ye are asked ' To go back, go back: ' That makes for greater purity."
(See THE HOLY QUR'AN by Abdullah Yusuf Ali).
' Allama Yusuf Ali while commenting upon the Islamic concept of privacy of home, with reference to the above verses, has observed that the said concept, as compared to the Englishman's concept of exclusiveness, which is reflected in the old saying that an Englishman's home is his castle, is distinguishable inasmuch as it reflects privacy without exclusiveness and I friendliness without undue familiarity. The concept of purdah is inherent in the concept of privacy of home. However, as was held in the case of Mst. Zubida v. M/s. Pakistan State Oil House, reference to which has earlier been made in this judgment, right to privacy cannot be claimed by a person whose house is C distant from the proposed building. The petitioners in the present case are said to be residing in the same area, but none of them claims to reside so close to the proposed building so as to claim right of privacy as contemplated by Article 14. Article 14 of the Constitution, therefore, cannot be pressed into service in the present case.
20. Mr. Sharifuddin Pirzada has further pointed out that the case of Miss Benazir Bhutto cannot be invoked in the present context, because there, the question before the Supreme Court was as to its own powers under Article 184(3) of the Constitution and it cannot be spelt out from the said judgment that the Supreme Court intended any deviation from the rule hitherto followed by the Courts in respect of interpretation of the expression "aggrieved party". Although the jurisdiction that can be exercised by the Supreme Court under the said Article is comparable to the writ jurisdiction of the High Court under Article 199 of the Constitution, but as is clear from the language of the said Article itself, the Supreme Court would be vested with such power only when there is a question of public importance with reference to the enforcement of a fundamental right. The powers conferred on the High Court by Article 199 are clearly spelt out by the said Article which makes no distinction vis-a-vis the restrictions placed by the Article qua locus standi of a party to maintain a writ, notwithstanding the fact that any violation of a fundamental right has been alleged by the petitioner. It may be pointed out that the observations made by the Supreme Court in Miss Benazir Bhutto's case have neither laid down any new parameters vis-a-vis the jurisdiction of the High Court nor they have given a different interpretation to the expression "aggrieved party" appearing in Article 199 of the Constitution. The ambit of the jurisdiction of the Supreme Court and the High Court has been separately defined by Articles 184(3) and 199 of the Constitution respectively, albeit the nature of the powers is the same. Mr. Sharifuddin Pirzada is, therefore, right while pointing out that the case of Miss Benazir Bhutto is not attracted to the facts of the present case.
21. However, the question as to locus standi requires further examination from altogether a different angle, because as has also been observed by De Smith in "Review of Administrative Action", Courts have consistently been striving to reconcile the two conflicting aspects--the desirability to encourage citizens to participate in the enforcement of law and the undesirability of encouraging professional litigants. Reference has already been made to the case of Fazal Din where it was held that a person having interest in the subject-matter of the case can successfully maintain a writ before the High Court. In the case of Mst. Sardar Begum v. Rashida Khatoon, which has also been referred to earlier in this judgment, a Division Bench of this Court, while referring to the case of Abdul Wahid Butt v. Mrs. Asma and others (C. P. No,D-290/89--1989 CLC 1936) granted an ad interim injunction against raising of unauthorised multistoreyed construction. The Division Bench in the said case had observed:-- "We cannot be unmindful of the fact that it has now become common practice in the Karachi City that unauthorised constructions in the form of multistoreyed buildings are being raised which affect the neighbours and the other residents of the locality as the supply of water and electricity are affected. There seems to be a marked distinction between a right to maintain a suit and a right to maintain a constitutional petition. In the former case a plaintiff should have a legal right, whereas in the latter case a petitioner may not have personal legal right in stricto senso, but may have some interest in the subject-matter of the writ petition. In the instant case as pointed out hereinabove the private respondents have raised and are still raising constructions in violation of the approved building plan and the building bye-laws. Respondent No,3 as a statutory functionary under the Sindh Buildings Control Ordinance, 1979 is under the statutory duty to ensure the compliance of the building bye-laws. It cannot be said that the petitioner has no interest in ensuring that respondent No,3 discharges the above statutory duty. One of the prayers in the petition is that respondent No, 3 be directed to demolish unauthorised constructions put up by the private respondents. We, therefore, are of tentative view that prima facie the petitioner has lotus standi to maintain above petition. We are also inclined to hold that it is a fit case, in which a prohibitory interim injunction should be granted."
22. The view taken in the above case was once again followed by another Division Bench of this Court in Suleman Mala v. Karachi Building Control Authority, reference to which has earlier been made in this judgment. It was observed in this case as follows:-- "10. It is an admitted position that construction activities under the Sindh Building Control Ordinance of 1979 are controlled by and governed under an Authority, which, in so far as the city of Karachi is concerned, is known as the Karachi Building Control Authority. Buildings, as a rule, are to be raised on the basis of approved plans. Such plans, on principle are to be in consonance with the relevant scheme, spreading over a specific area, framed by or under the successive directions of the Karachi Metropolitan Corporation, the Karachi Improvement Trust, the Karachi Development Authority and, finally, the Karachi Building Control Authority, as it is in such order that these powers have, from time to time, come to vest. Each such scheme has its peculiar features and constructions, reconstructions and even modifications or alterations are to be on the basis of approved plans calculated to fit into the requirements of a particular scheme or an area within which scheme operates or is enforced. Open spaces covered areas, number of storeys and even nature or use of constructions may be duly regulated. Property holders within the perimeters of such schemes and even permanent residents come to have either vested rights or, at the very least, some interest in the observance of the necessary features of the relevant scheme. The local authority operating in such areas is obliged to ensure the observance and continuity of such schemes but always subject to law. Rights in such observance may not, in many cases, be rights stricto senso or strict juristic rights but could be rights or even interests of an inferior nature which, if not observed, could give rise to grievance to individuals. Where rights in strict legal sense are involved, remedy for transgression may be through civil suits, or if necessary in Constitutional jurisdiction but where mere interests occasion a grievance the aggrieved party may not qualify to successfully maintain a suit. Statutory bodies, which are required by law to give effect to such rights or interests by enforcing compliance of their rules and regulations may, however, be appropriately sued in Constitutional jurisdiction by aggrieved persons since, for maintaining such Constitutional remedies, existence of rights stricto senso is not necessary."
23. Somewhat similar observations were made in the case of Vazir Ali v. Hanif 1990 CLC 1842 which appear at page 1844 of the report.
24. The question as to locus standi was also considered by another Division Bench of this Court in Mst. Feroza Hajiani v. Abdul Razzak 1992 MLD 527 and right of neighbour to maintain a writ when enjoyment of right to their property was being violated by the respondent because of the failure of the statutory authorities to perform their statutory duties, was once again reaffirmed. In this case also, as in the case of Suleman Mala, reliance was placed on Fazal Din v. Lahore Improvement Trust reported in PLD 1969 SC 223.
25. Similar view was expressed in Naseer Ahmed v. Hafiz Muhammad Ahmed 1984 CLC 340 and Muhammad Munir v. Ahmed Ally Memon PLD 1982 Karachi 425. In the second case it was held that in order to challenge the action, the plaintiff must show, firstly, that there is a modification or alteration of sanctioned scheme which is of radical nature and would render the scheme itself impracticable or unfit for the purpose for which it was designed, and secondly, the plaintiff should have a personal interest in the performance of duty, and thirdly such alteration would result in the loss of some personal benefit or advantage or the curtailment of a privilege. This was one of the cases relied upon by the Division Bench of this Court in Suleman Mala v. Karachi Building Control Authority.
26. We have already referred to De Smith's Judicial Review of Administrative Action reference wherein has been made to Lord Denning's observations that the Court would not listen, of course, to a mere busybody who was interfering in things which did not concern him," but reference to.
Page 412 in the same book indicates that a departure is now being made by the Courts from the restrictive and highly technical approach to the question of locus standi. According to the learned author, in a more recent case, person aggrieved has been held to mean as one "who has a genuine grievance because an order has been made which prejudicially affects his interests Att.- Gen. Of the Gambia v. N'JIE (1916) A.C. 617, 634". Among the cases cited by the learned Author is the case of Maurice v. London County Council (1964) 2 Q.B. 362 wherein a house-holder anticipating a serious loss of amenity as a result of an administrative decision to permit the building of a high block of flats nearby was held to be entitled to appeal against the decision as a person aggrieved.
In another case which has been referred to by the learned author as R. v. G.L.C., ex. b. Blackburn (1976) 1 WLR 550, a rate-payer was held to have locus standi to prohibit the local authority from issuing cinema licences that did not forbid the showing of films contrary to the criminal law. In the same case it was held that residence in the area may also suffice. While referring to the rule governing the same question of locus standi in relation to issuance of writs of prohibition, the learned author at page 416 of the book observes that: "if a defect of jurisdiction is apparent on the face of the proceedings, the application for prohibition may be brought not only by a party aggrieved but also by a "stranger to proceedings". Reference has been made in this regard among others, to the case of De Haber v. Queen of Portugal (1851) 17 Q.B. 171, 214. However, according to the learned author, "if the defect of jurisdiction is not patent, the Court has a discretion to refuse to award prohibition to the applicant, but whereas it will incline towards exercising its discretion in favour of a party aggrieved, it will refuse an application made by a "stranger" unless he makes out a very strong case". Referring to the question of locus standi in relation to certiorari, the author at page 418 of the book observes: there are numerous dicta to the effect that a "stranger" may be awarded certiorari. On the other hand, there is no reason for doubting the soundness of Lord Denning's observations that the Court "would not listen, of course, to a mere busybody who was interfering in things which did not concern him." However, according to the observations made by the learned author at the same page, "A person aggrieved, i,e, one whose legal rights have been infringed or who has any other substantial interest in impugning an order, may be awarded a certiorari ex debito justitiae".
27. It is, therefore, clear from the above that, as to the question, who is an aggrieved party, rules have not been fashioned by the Courts to apply uniformly for determination of the issue. The question therefore, is to be determined in the light of the facts of each case. However, the preponderant view, appears to be that a person in order to qualify as an "aggrieved person" may not have a right in strict juristic sense, but he can nevertheless maintain a writ if his interests are prejudicially affected. No doubt, as has been contended by Mr. Pirzada, the Court would not listen to a mere busybody who interferes in matters which do not concern him, but in the present case, although, the petitioners do not have their properties situated in the close neighbourhood of the site of the intended building, nevertheless they reside in the same area. In High Court Appeal No, 158-159/89 (Dr. M.A.Mahboob v. Mrs. Nawab Begum), decided on 25-3-1992 by a Division Bench of this Court of which one of us (Mamoon Kazi, J.) was a member, it was observed that: "the Building Rules are meant for the benefit of the society in general and of the immediate neighbours in particular". Consequently, in case of infraction of any building regulation which prejudicially affects the residents of a locality any person residing in the locality would have locus standi to maintain a Constitutional petition. The observations made by the Supreme Court on the point in Fazal Din's case, although made in the case of an amenity plot, should, in our opinion, clinch the issue in favour of the petitioners for more than one reason. Firstly, as pointed out by us earlier, no such distinction has been drawn by the Supreme Court in the said judgment. Secondly, out of the cases referred to in the said judgment, only one of them relates to conversion of use of a site earlier earmarked for public purposes. Therefore, it would be erroneous to conclude that the observations made by the Supreme Court in Fazal Din's case can be invoked only in a similar situation.
Consequently, it cannot be said that the petitioners who reside in the same locality have no interest in the subject-matter of the petition. Construction of high-rise buildings can cause nuisance to the neighbours or persons living in the same locality. In absence of supporting infrastructure, the residents of the locality can object on the ground that the proposed building would interfere with their amenities. It was observed in Fazal Din's case: "Deprivation of such a facility would in our opinion, confer a sufficiently valuable right upon the residents of the scheme to enable them to maintain an application for forcing the Trust to discharge its obligation of executing the scheme as sanctioned by the Government" So in the present case, deprivation of any amenity would confer a right on the residents of the locality to maintain a writ petition.
28. The next contention of Mr. Pirzada has been that the petition suffers from laches as the petitioners failed to act diligently in filing the present petition. Learned Counsel has argued that notices were published in the month of November, 1989 whereby wide publicity was given by respondent No, 1 to their proposed building project, nevertheless the petitioners failed to show any concern. Thereafter the respondent No,1 filed Suit No,1187/90 in this Court against the respondent No, 2 and an interim stay was granted by the Court in favour of the former, but again the petitioners failed to join the proceedings as a party. In the meanwhile construction was carried on and it was only in January, 1991 that the present petition was filed and consequently, the petition miserably suffers from laches.
29. The law as to laches is based on the maxim "Viqilantibus non dormientibus acquit as subvenit" - - equity helps the wakeful, not the slumbering. Laches signify laziness in pursuing a legal remedy. In the case of M.H. Abidi v. State Life Insurance Corporation (1990 MLD 563), a Division Bench of this Court while repelling a plea in regard to laches observed as follows:-- "....Laches is not the same thing as limitation. It is not every grievance, which requires to be promptly ventilated and pursued in, a legal forum. Litigation is to be avoided rather than invited.
Whether or not limitation is provided, before recourse to law is taken, an aggrieved person has to be sure that a point of no return has reached and that redress must be sought. However, where limitation is invocable he must act within prescribed period. But no period, as may constitute laches, can be quantified. In the absence of a bar of limitation, the period within which remedy is to be sought has, however, invariably to be a reasonable one. Element of due diligence is also to be reconciled. What is more, delay should never be such as to generate a belief or situation of abandonment of the right because, then, vested 'right comes into operation and cannot be deviated from. Still, whether or not laches is involved in a particular case depends on the facts of such case. But, it is only when a right is firmly and finally repudiated, leaving no legitimate scope for retraction that, in the absence of a bar of limitation, a person is obliged to resort to legal proceedings. In the instant case, even though the petitioner was refused accommodation, he considered the matter to be worth a further try, at the level of the State run enterprise itself, resorted to a repeat representation, which he promptly made, which was acknowledged to be pending all the time and which was,. Finally, turned down on 20-1-1980. This, therefore, is not a case of laches."
In another case reported as Mrs. Shreen G. Kandawala v. Federation of Pakistan (PLD 1989 Kar. 471) another Division Bench of this Court rejected a similar plea of laches by observing that simpliciter laches is no ground for non-suiting a petitioner if the equities are not against him. Reference in this case was made to an earlier judgment of the Supreme Court reported in 1987 SCMR 1119 wherein it had been observed that a Constitutional petition cannot be dismissed on the ground of laches without examining the dictates of justice in the claim of each party in addition to examination of law and jurisdiction points involved in the case.
30. In this regard it may be pointed out that admittedly litigation was already pending between the respondent No, 1 and the respondent No,2. There also appears to be no controversy on the point that respondent No,2 had served a notice on the respondent No,1 requiring the latter to pull down the building structure raised on the site which as per admission of the said respondent in the written statement filed in Suit No,1187/90, had been responded to by it by submission of a revised building plan for approval of the respondent No, 2 and stoppage of further construction on the site.
This suit which was filed by respondent No, 1 in November, 1990 was withdrawn by it in November, 1991 after the said respondent had succeeded in obtaining a favourable order from the then Chief Minister of Sindh on 21-8-1991. It further appears that it was only after the 2nd October, 1990 when the respondent No,2 approved the building plan submitted by the respondent No,1 for construction of a structure consisting of ground plus ten floors that the present petition was filed on 20-1-1991 impleading the Karachi Building Control Authority and the Government of Sindh, the respondents Nos.2 and 3, as parties along with the respondent No,1. Consequently, there hardly appear to be any laches in filing the present petition because after approval was granted by the respondent No,2 to the respondent No,1 to construct the building, the petitioners do not appear to have wasted much time in approaching this Court with their grievance. Having disposed of both the preliminary objections raised by Mr. Pirzada, we now advert to the merits of the case.
31. As to the fact that building plans of the respondent No,1 which have been approved by the respondent No,2, do not conform to the relevant provisions of the said Regulations, there appears to be no controversy. So far as the Regulations are concerned, they were framed by a committee of experts constituted by the Government of Sindh under Notification No, SO(vi)8(27)/72 dated the 30th October, 1978. Although apparently, the Regulations were not framed under any rule-making power derived from a statute, neither they appear to have been notified in the official Gazette as required by clause (3) of Regulation 1, but they were subsequently adopted by the Sindh Buildings Control Ordinance, 1979 and have now acquired a legal status after promulgation of the said Ordinance. Section 21-A of the said Ordinance empowers the Authority appointed under section 4 of the said Ordinance to frame regulations and, according to subsection (3) of section 21-A, until new regulations are framed, the Karachi Building and Town Planning Regulations shall be deemed to be the regulations framed under the said Ordinance. However, according to the proviso to subsection (3), the Regulations must not be inconsistent with the provisions of the Ordinance and the Rules framed thereunder. N. S. Bindra, in his book, Interpretation of Statutes and General Clauses Act, 4th Edn., at page 731, while referring to deeming provisions used in legislation, states: "when a statute enacts that something shall be deemed to have been done which in fact and truth was not done the Court is entitled to and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it must be carried to its logical conclusion." The said learned author in the said book, at page 561 has further observed: "when an Act enables an authority to make regulations, a regulation which is validly made under the Act, i,e, which is intra vires of the regulation making authority, should be regarded as though it were itself an enactment". Therefore, in our opinion, the said Regulations in the present case have clearly been clothed with statutory authority by virtue of section 21-A of the aforesaid Ordinance. It is also pertinent to point out that no new regulations have yet been framed under the said Ordinance.
32. Mr. Naimur Rehman has argued that respondents No,2 and 3 are under legal obligation to adhere to the provisions of the said Regulations which have the force of law. The Regulations, according to the learned Counsel, have been framed to preserve the ecology and environment of the city of Karachi, therefore, Courts must ensure strict compliance therewith. The learned Counsel has further argued that no authority is empowered to permit deviation from the Regulations, be it the Chief Minister. In support of his contention, the learned Counsel has referred to a number of decisions of this Court wherein the Court has intervened to prevent infraction of the Regulations but before reference is made to the same, we would like to reproduce the relevant provisions of the Sindh Buildings Control Ordinance and the said Regulations around which the entire controversy in the case has revolved. Section 6 of the Ordinance provides that: "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:"
(The other clauses of the section are not relevant to the present case.)"
' Section 7-A of the said Ordinance, which was incorporated therein by Sindh Buildings Control (Amendment) Ordinance, 1982, further provides that: "7-A. Violation of certain Provisions. ---Where the provisions of subsection (1) 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 cases."
' Section 19 of the Ordinance which refers to penalties provides as under: "10. Penalty.---(1) Whoever contravenes any provision of this Ordinance, shall be punished with simple imprisonment for a term not exceeding two years or with fine not less than twenty thousand rupees or with both and if the offence is a continuing one, further fine not exceeding five hundred rupees for each day after the date of the first commission of the offence.
(1-A) The Authority or any person authorized by it in this behalf may compound any offence under this Ordinance on such terms and conditions as may be prescribed.
(2) No Court shall take cognizance of an offence under this Ordinance except upon a complaint in writing made by the Authority or any person authorised by it."
' The relevant procedure vis-a-vis the powers of concerned authorities to deal with unauthorized construction is also embodied in Regulation 16 of the said Regulations. The said Regulation provides that: "16. (1) If the building works are commenced or carried out contrary to the provisions of these regulations the concerned authority shall,
(a) by written notice require the person who is carrying out such building works forthwith to stop all work thereupon;
(b) by written notice require the person who is carrying out or has carried out such building works on or before such day as shall be specified in such notice by a statement in writing subscribed by him or by an agent duly authorised by him and addressed to the concerned authority to show sufficient cause why such building works or such part thereof shall not be removed or altered to comply with these regulations;
(c) require the said person on such day at such time and place as shall be specified in such notice to attend personally or through an agent duly authorised by him and show sufficient cause why such building works or part thereof shall not be removed or altered.
(2) If such person fails to show sufficient cause to the satisfaction of the concerned authority why such building works or part thereof shall not be removed or altered, the concerned Authority may take the following actions:
(a) require the person who has carried out the works against the provisions of these regulations or any other statute, to demolish the whole building or part thereof;
(b) to alter the works so as to bring it into conformity with these regulations;
(c) compound the offence after realization of composition fee on the merits of the case, provided, that no offence shall be compounded if
(i) the building works or part thereof violate any requirements of the provisions of any sanctioned site development scheme;
(ii) the building works obstruct any future road widening scheme of any concerned authority;
(iii) the building work or part thereof exceeds the maximum permissible height and number of storeys allowed under these regulations;
(iv) the building work extends beyond the property limits except otherwise provided in section No, 34;
(v) the building work or part thereof violates fire or any other safety requirements;
(vi) for any other violation of the Master Plan not falling in the above category, N.O.C. From the Master Plan & Environmental Control Department (Authority under Sindh Buildings Control Ordinance, 1979) shall be obtained before compounding of the offence."
' Reference may also be made to Regulations 20, 23, 24 and 25 which provide as follows: "20. (1) If on making any inspection under regulation 19, the concerned authority finds that the building works:-
(a) are otherwise than in accordance with the plans that have been approved; or
(b) contravene any of the provisions of the existing regulations or any statute, it may, by written notice require the person and the licensed architect carrying out building works within a period to be specified in such notice, with the object of bringing the works into conformity with the said plan or provision of these regulations to get amended plans approved after complying with the requirements of these regulations or statute.
23. Where a person erected or re-erected or commenced to erect or re-erect a building without submitting to the concerned authority building plan for sanction then notwithstanding and in addition to, any other action that the concerned authority may take under the relevant statute and these regulations, the concerned authority may give notice in writing directing such person to submit to the authority within such time as specified in the notice, building plans in accordance with these regulations showing the buildings so erected or re-erected or proposed to be re- erected.
24. Where a person has erected or re-erected, a building which is not in conformity with the building plan sanctioned by the concerned authority in any manner whatsoever such person shall, together with the report of completion of the building, submit a completion plan showing the building exactly as completed and the deviations made in the building from the sanctioned building plan through a licensed Architect/Civil Engineer-Building/Technologist as the case may be on prescribed form for consideration of the concerned authority provided it is in accordance with these regulations.
25. The concerned authority may refuse permission to erect or re-erect a building and sanction building plan or completion plan, if the proposed or completed building contravenes or is in any manner inconsistent with any building or zoning regulations or restrictions, or order or direction whether made under the relevant statute or the regulations or terms and conditions or covenant of lease whether express, or implied, or any building custom or practice, by whatever name called, laid down or hereto for generally imposed or followed by the Government, or any local government body, co-operative housing society, generally or in respect of building operation in any particular area."
33. The aforesaid provisions of the Ordinance and the Regulations were examined by a Division Bench of this Court in the case of Mst. Feroza Hajiani v. Abdul Razzak, reference to which has earlier been made in this judgment although, in a different context, and it was held that, power conferred by section 19 of the aforesaid Ordinance and Regulation 16 is analogous to the power conferred by section 345 of the Criminal Procedure Code upon Courts to permit compounding of certain offences and such power under the said Ordinance or the Regulations cannot be synonymous with power to regularize erection of building in violation of the Regulations or that compounding of an offence would not ipso facto be construed as regularization. Reference has also been made by Mr. Naimur Rehman in this regard to Abdul Waheed Butt v. Asma and 4 others 1989 CLC 1936, Akhtar Hamid Ghori v. Messrs Saima Estate Developers 1989 CLC 2173, Mrs. Nawab Begum v. Dr. M.A.
Mahboob (1989 CLC 2252), Sardar Begum Faruqui v. Rashida Khatoon 1990 CLC 83 and Suleman Mala v. Karachi Building Control Authority 1990 CLC 448.
34. Mr. Sharifuddin Pirzada has, however, contended that none of the cases cited by Mr. Naimur Rehman can be called in aid in the present case. In the said cases grievance before the Court was raised either by person who resided in an adjoining building or there was a question of breach of restrictive covenant which could be raised only by the lessor. In the present case, the deviations made from the relevant Regulations were lawfully condoned by the concerned authorities as the respondent No,1 was charged a sum of Rs,22,40,515 for raising additional storeys in the building.
Support in this regard has been sought from the case of Mohammad Munir v. Ahmad Ally Memon PLD 1982 Kar. 425 where the Karachi Municipal Corporation was held to be empowered to levy and realize fee for permitting construction of additional floors beyond the original permissible limits. In this case it was held that after such fee had been realized, the restrictions imposed on the contesting defendants in regard to construction of additional floors would be deemed to have been revoked. Mr. Pirzada has pointed out that, although this case was a case decided by a learned Single Judge of this Court, but nevertheless this judgment was noticed with approval by a Division Bench of this Court subsequently in the case of Suleman Mala. Referring to the case of Mst.
Feroza Hajiani, Mr. Pirzada has contended that the ratio laid down by the Division Bench in the said case has made a clear departure from the view earlier held on the point by this Court. Learned Counsel cited the case of Naseer Ahmed v. Hafiz Mohammed Ahmed wherein it was held by another Division Bench that the question of breach of covenant was between the lessor and the lessee. The power of the local bodies to compound infractions of Regulations, according to the learned Counsel, was also not called in question in the case of Suleman Mala. The other cases on the point cited by Mr. Pirzada are the cases of Mst. Sardar Begum Faruqui and Vazir Ali v. Hanif, reference to which has already been made in this judgment. It has been pointed out by Mr. Pirzada that one of the Judges who passed the order in the last case (Imam Ali G. Kazi, J.) was also one of the learned Judges who subsequently delivered the judgment in the case of Mst. Feroza Hajiani. Mr. Pirzada has particularly relied upon the following observations made by the Division Bench in Vazir Ali's case, viz.: "The respondent has not produced any such certificate and also not shown whether, as in the case of 2nd and 3rd floors, he has paid any additional fee to the Building Control Authority in respect of the 4th floor."
' The learned Counsel has, therefore, argued that, as is evident from the above observations, the Division Bench was clearly of the view that construction of additional floors was permissible on payment of additional fee to the Building Control Authority. However, a complete departure was made by Mr. Justice Imam Ali G. Kazi from the above view earlier held by him in the case of Mst.
Feroza Hajiani. Mr. Sharifuddin Pirzada has, therefore, argued that under such circumstances it was imperative for the Bench which heard Mst. Feroza Hajiani's case to refer the matter for decision by a larger Bench and in such case the view earlier held must prevail.
35. Reliance has been placed by Mr. Pirzada upon Jamuna Rai v. Chandradip Rai (AIR 1961 Pat. 178).
In this case, the High Court of Patna while relying upon its earlier decision in AIR 1955 Patna 124 had observed that, "if there are two conflicting decisions of Division Benches of a High Court, the opinion expressed by the first Bench mush prevail." The question in regard to one Bench disregarding the conclusions reached by another Bench on the same question was also considered in the case of Province of East Pakistan v. Sirajul Haq Patwari PLD 1966 SC 854. It was observed by Cornelius, C.J., while speaking for the Supreme Court, as follows:- "....There remains one further matter, of no little importance, for consideration, namely whether it was in order for the Full Bench in this case to disregard the conclusions reached by the earlier Special Bench, on several of the questions of law on which the Full Bench has made pronouncements to the contrary effect. In a recent case decided on appeal from the High Court of East Pakistan, i,e, East Pakistan Province v. Dr. Aziz-ul-Islam PLD 1963 SC 296, this Court indicated that where a Division Bench of the High Court is inclined to take a different view from that declared in an earlier judgment of a similar Division Bench, one course open to the Court was to "have expressed their doubts regarding the view taken in the precedent case, in a Court of co-equal jurisdiction, while. Yet following that view, and left the matter to be raised in appeal before-this Court." The alternative course, under the Rules of the Court, was to refer the matter to a larger Bench."
36. Similar observations appear in the Province of East Pakistan v. Dr. Azizul Islam PLD 1963 SC 296 and Pakistan v. Salahuddin PLD 1991 SC 546 at pages 308 and 456 of the said reports, respectively.
In fact, there can hardly be any cavil with the contention of Mr. Sharifuddin Pirzada that one Division Bench is bound to follow the earlier decision of another such Bench on the decided question.
However, the basic question is, did Division Bench of this Court which decided the case of Mst.
Feroza Hajiani make any departure from the view earlier taken by any other Division Bench of this Court. We have already examined in details the judgments cited by Mr. Sharifuddin Pirzada in this regard. First of all, in the said cases the Division Bench had only granted interim relief by way of a temporary injunction. Consequently, any view taken by the Division Bench was tentative as it was only based on establishment of a prima facie case. Secondly, in none of the said cases the question as to the powers of the concerned authorities to compound violations of the said Regulations was directly or substantially in issue as in the case of Mst. Feroza Hajiani. The question before the Division Bench in the said case was, whether the Karachi Building Control Authority was competent under section 19(1-A) of the Sindh Buildings Control Ordinance to compound offences and regularize construction of building made in violation of the Building Regulations. Reference in this regard was made to Regulations 16 and 20 of the Karachi Building and Town Planning Regulations as, according to the Counsel of the respondent authority, power to regularize construction made in contravention of the provisions of the said Regulations could be spelt out from the said Regulations. Such contention was, however, repelled by the Division Bench. No comparison, therefore, in our opinion, can be drawn between the case of Mst. Feroza Hajiani and the cases relied upon by Mr. Sharifuddin Pirzada as in none of the said cases, either the status of the Regulations was in issue or the controversy related to the powers of the respondents No-.2 and 3 either under section 19(1A) of Karachi Buildings Control Ordinance or Regulation 16 to compound any offence with the owner of the proposed building.
37. We now advert to one of the most pertinent questions raised by Mr. Sharifuddin Pirzada: whether deviations from the provisions of the Regulations can be permitted or compounded either by the Karachi Building Control Authority or the Government of Sindh. Although there appears to be no controversy on the point that the Regulations have the force of law, but, according to Mr. Sharifuddin Pirzada the Regulations are comparable to bye-laws that may be framed by a local or municipal authority. The learned Counsel has further contended that deviation can be permitted from the Regulations by the Government of Sindh which is a competent authority. While tracing the history from 1968, the learned Counsel has pointed out that, according to a decision taken in a meeting of Karachi Development Authority held on 19-9-1968, high-rise buildings in Garden East Area were permitted which was, however, made subject to certain restrictions. The learned Counsel has also invited our attention to another Notification issued by the Government of Sindh dated 24- 12-1973 whereby permission for raising multistoreyed construction beyond the original permissible limits was given subject to the payment of fee. Subsequently, by another notification dated 20-5- 1976 issued by the Government of Sindh such permission was extended for the entire city of Karachi within its municipal limits.
38. Reference to the provisions of sections 6 and 7A of the Sindh Buildings Control Ordinance and the Regulations reproduced above indicates that no building can be constructed without approval of the said Authority and where construction of any building is made in violation of the provisions of section 6(1) of the aforesaid Ordinance, then besides any other action including sealing of the building or ejectment of the occupants therefrom that may be taken in this behalf, the building may be demolished at the cost of the builder in the case of a public building and the owner in other cases. Section 19(1) of the Ordinance makes contravention of the provisions of the Ordinance punishable with imprisonment or-fine and subsection (1) thereof empowers the authority or any person authorized by it in this behalf, to compound any offence under the said Ordinance on such terms and conditions as may be prescribed. Regulation 16, which has also been reproduced above, also indicates that if the building works are commenced or carried out contrary to the provisions of the Regulations, then in case the offender fails to show sufficient cause to the satisfaction of the concerned authority, why such building works or part thereof may not be removed or altered, he may be required by the concerned authority either to demolish the whole building or part thereof or to alter the works so as to bring them into conformity with the Regulations or to compound the offence and in such case, permission to compound can be granted after realization of composition fee. Regulation 16 is also subject to a proviso to which we intend to advert subsequently but before it we would like to first refer to Mr. Sharifuddin Pirzada's contention that deviation from the Regulations can be permitted or compounded by the , concerned authorities under the above provisions of the said Ordinance or the said Regulation. No provision, either in the said Ordinance or the Regulations has been referred to by Mr. Pirzada wfierefrom power to permit deviations from the provisions of the Regulations while granting approval of the building plans by the said Authority, except by condonation, can be spelt out. A plain reading of subsections (1) and (1-A) of section 19 indicates that the authority or any person authorized by it in this behalf has been permitted to compound any offence under the aforesaid Ordinance on such terms and conditions as may be prescribed. As subsection (1-A) occurs after subsection (1) in section 19, the expression "any offence" clearly appears to be referring to the contravention of the provisions of the Ordinance as referred to in subsection (1) of section 19 as any such contravention has been made punishable as an offence by the said subsection. Consequently, power conferred on the Authority or any person authorized by it to compound an offence has reference to such offences as are referred to in subsection (1). Therefore, subsection (1-A) cannot be construed as authorizing the authority to condone deviations from the said Regulations. But, as has been held in the case of Mst. Feroza Hajiani, such power referred to in the said subsection is analogous to the power of the Court under section 345 of the Criminal Procedure Code. Consequently, as has been further held in the said case, such process can only absolve the offender from being prosecuted and punished for such offences but the said provisions in no manner can empower the authority to condone or regularize erection of a building in violation of the Regulations. However, perusal of Regulation 16 further indicates that if building works have been commenced or carried out contrary to the provisions of the Regulations, the authority shall by a written notice require the person who is carrying out such building works, to forthwith stop all work thereon. If such person fails to show sufficient cause vis-a- vis the contravention, the Authority may require such person to demolish the whole construction or part thereof or to alter the works so as to bring them into 'conformity with the said Regulations or to compound the offence after realization of the composition fee. It is pertinent to point out that as the Regulations in contradistinction to the provisions of section 19(1) of the Sindh Buildings Control Ordinance, do not refer to any offence which may be a crime or a felony or a misdemeanour or any other infraction subject to prosecution, the term "offence" referred to therein obviously cannot be construed as implying a crime. No doubt, the term "offence" generally implies a crime or a misdemeanour, but it can also be used for a transgression which may not amount to crime or an illegal act.
Consequently, in, our opinion, the word "offence" used in Regulation 16 cannot be construed so as to have a meaning identical to the same expression used in section 19 of the aforesaid Ordinance. In section 19 the said word clearly implies a crime whereas in Regulation 16 it appears to be implying a mere transgression of a Regulation. Therefore, in our opinion, transgressions indicated in Regulation 16 can also be compounded on realization of composition fee from the owner of the building. However, perusal of Regulation 16 further indicates that such composition is not permissible in certain cases enumerated in clauses (i) to (vi) therein which occur at the end of the said Regulation. Clause (iii) in the said Regulation further indicates that no offence can be compounded if the building work or part thereof exceeds the maximum permissible height or number of storeys allowed under the Regulations. Consequently, although Regulation 16 permits compounding of certain transgressions or deviations made by the owner of a building, but the power of the authority to permit composition is not an absolute power but the same is subject to restrictions placed by the said proviso to Regulation 16. It is also pertinent to point out that Regulation 16 referes to condonation of an offence that is to say, it can be invoked only in case where the owner of the proposed building has already made deviations either from the approved building plan or the provisions of the Regulations. It is only in such cases that power has been conferred on the said Authority to compound the offence. But the same in no way can be construed so as to permit contravention of any Regulation otherwise than by condonation. This is further indicated by Regulations 20, 23, 24 and 25 which have been reproduced earlier in this judgment. Regulation 24 requires a person who has erected a building to submit a completion plan of the building showing deviations made in the building, if any, from the sanctioned building plan.
Regulation 25 indicates that the concerned authority may refuse permission to erect or re-erect building if the proposed building contravenes or is in any manner inconsistent with any building or zoning regulations or restrictions. Consequently, as is clear from the above provisions, neither section 19 of the aforesaid Ordinance nor Regulation 16, permits compounding of any offence when restrictions imposed by the Regulations on construction of high-rise buildings have been contravened. Therefore, in our opinion, the Karachi Building Control Authority is not competent to grant permission in respect of construction of a high-rise building in contravention of the provisions of the Regulations.
39. The second limb of Mr. Pirzada's argument is that the Government of Sindh is empowered to permit deviation from the relevant provisions of the Regulations on receipt of fee, as pointed out earlier, for the construction of additional floors in the proposed building. However, it is first to be determined what is the effect of the Regulations vis-a-vis the two notifications issued in this behalf under section 74 of the repealed Sindh Local Governments Ordinance, 1972 referred to by Mr. Pirzada. Referring to the status of Regulations, Bindra in Interpretation of Statutes, 7th Edition, at page 822 observes:-- "The term 'regulations' has of recent years been much used to denote Ordinances having the force of law made by subordinate authorities under delegated powers. Regulations framed under an Act are of very great importance. Such regulations are framed for the successful operation of the Act.
Without proper regulations, a statute will often be worse than useless."
Similar observations have been made by the said learned author in regard to bye-laws. It has been observed at page 827 of the said book: "A bye-law is not an agreement, but a law binding on all persons to whom it applies, whether they agree to be bound by it or not. Thus all regulations made by a corporate body and intended to bind not only themselves and their officers and servants, but members of the public who come within the sphere of their operation, may be properly called bye-laws whether they be valid or invalid in point of law, for the term bye-law is not restricted to that which is valid in point of law."
' Therefore, judged from any angle, the Regulations are intended to bind not only the first respondent, but also the other respondents. No doubt, notifications appear to have been issued by the Government of Sindh, dated 24-12-1973 and 20-5-1976 respectively, permitting construction of high-rise buildings beyond the original permissible limits against levy of fees within certain specified areas of Karachi, but such notifications, as is evident from the language employed therein, were issued under section 74 of the Sindh Peoples Local Government Ordinance, 1972 which has now been succeeded by the Sindh Local Government Ordinance, 1979. Section 74 of the repealed Ordinance provides as follows:-- "74. Directions with regard to levy of tax, etc.--(1) Government may direct any Council--
(a) to levy any tax, rate, toll or fee which the Council is competent to levy under section 71; or
(b) to increase or reduce any such tax, rate, toll or fee, or the assessment thereof, to such extent as may be specified; or
(c) to suspend or abolish the levy of any such tax, rate, toll or fee.
(2) Government may where it thinks fit by order direct that the proceeds of all or any of the taxes, tolls, rates or fees collected by a Council shall be distributed among and allocated to such other Councils in the district in such manner and proportion as may be prescribed by such order.
(3) If a direction issued under subsections (1) and (2) is not complied with, within the specified time, if any, Government may make an order giving effect to the direction."
40. As is evident from the language employed in section 74(1), the Government has only been empowered to direct any Council either to levy tax, rate, toll or fee which the latter is competent to levy under section 71 of the said Ordinance or to increase or reduce any such tax, rate, toll or fee or to suspend or abolish the same. Therefore, from nowhere power to grant permission for construction of a high-rise building can be spelt out from section 74 of the said Ordinance. The two Statutes, namely, the Sindh Peoples Local Government Ordinance, 1972 and the Sindh Buildings Control Ordinance, 1979 under which the said Regulations have acquired their legal status, occupy divergent fields and therefore, by no rule of interpretation, section 74 can be construed so as to empower the Government or any officer or functionary thereof to override the said Regulations.
Reliance has also been placed by Mr. Pirzada upon certain administrative instructions in this regard, but the same cannot take precedence over the provisions of the Regulations, which, as just pointed out, have statutory force.
41. Mr. Pirzada has, however, argued that the Chief Minister of Sindh is a competent authority to grant such permission. In this regard, besides the notifications just referred to by us, learned Counsel has also referred to subsections (5) and (6) of the Sindh Buildings Control Ordinance which were incorporated in the said Ordinance by the Sindh Buildings Control (Second Amendment) Act, 1990 which was promulgated on the 23rd December, 1990. The said subsections provide as follows:-- "(5) At any time after a No-Objection Certificate has been issued under subsection (1) but before the completion of building Government may, if it is satisfied that the construction of any type of building or buildings in any area is not in the public interest or is otherwise inexpedient, notwithstanding anything contained in this Ordinance, rules or regulations made thereunder and without notice suspend or cancel the certificate.
' Explanation:--The expression "completion of building" used in this subsection means the completion of building in all respects according to the approved plan and in respect whereof occupancy certificate has been issued.
"(6) Where any order is passed under subsection (5), the matter shall be reprocessed by the Authority in accordance with such direction as may be given by Government."
' As has been earlier pointed out by us in this judgment, after promulgation of the said Ordinance, by an order dated 14th August, 1990 the Government of Sindh while purporting to exercise powers conferred by subsection (5) of section 6 of the Sindh Buildings Control Ordinance directed that all the building plans and No-Objection Certificates issued in respect of construction of high-rise or multistoreyed buildings between 1-12-1988 and 5-8-1990 would stand cancelled with immediate effect. Thereafter, permission granted to respondent No,1 for construction of the said building automatically stood cancelled and withdrawn by virtue of the said order. The said respondent then approached the then Chief Minister of Sindh with an application dated 8-5-1991, requesting him to restore the No-Objection Certificate and regularise the building plans in question. This application appears to have been granted by the then Chief Minister on 21-8-1991. A question, therefore, arises, whether the order of the Chief Minister recommending regularization of the building plans of the respondent No,1 was a valid order which could override the provisions of the said Regulations. The contention of Mr. Pirzada has been that since the No-Objection Certificate was cancelled under the purported exercise of power under subsection (5) of the Sindh Buildings Control Ordinance, the Chief Minister of Sindh who recommended restoration of such certificate had validly acted within the power conferred by subsection (6) of the said section upon the Government of Sindh.
Subsection (5) of section 6 of the said Ordinance, in the first instance, indicates that power to suspend or cancel a No-Objection Certificate issued in respect of a high-rise building can be exercised by the Government in case it is satisfied that the construction of any type of building or buildings in any area is not in the public interest or is otherwise inexpedient. Subsection (5), therefore, nowhere indicates that it was inserted in the Sindh Buildings Control Ordinance with a view either to ensure compliance with the provisions of the said Regulations or to penalize the builders on account of violation of any such Regulation. Albeit, when the Government decides to act under the said subsection, public interest must be of paramount consideration. Subsection (6) of section 6 only indicates that after an order has been passed under subsection (5), the matter is to be reprocessed by the Authority in accordance with such directions as might have been given by the Government. Therefore, there has to be a direct nexus between the action that is taken under the said provisions and involvement of public interest or expediency. But neither of the said subsections to section 6 of the Ordinance indicates that the object behind them was enforcement of the said Regulations, notwithstanding the fact that the said order was purportedly issued by the Government of Sindh to prevent construction of high-rise buildings. However, subsections (5) and
(6) cannot be construed so as to authorise the Government either to permit compounding of violations of any of the provisions of the said Regulations or to permit deviation therefrom, because no such intention can be spelled out therefrom. If the intention was to clothe the Government or the functionaries of the respondent No,2 with power to deviate from any provision of the said Regulations, the very purpose behind framing them would have been defeated. Such an intention in any case, cannot be spelled out from the said provisions of the said Ordinance. Consequently, in our opinion, the Chief Minister was not empowered to permit construction of a high-rise building in contravention of the Regulations. The power exercised by the Chief Minister was under a provision of law which has no nexus to the contravention of the Regulations. No doubt, the restrictions imposed under the general order issued under the newly-added provisions of the Sindh Buildings Control Ordinance were withdrawn by the order of the Chief Minister, but the same in no way can be construed to permit deviation from the Regulations which can only be done in accordance with the procedure provided in the Regulations themselves. Consequently, the Chief Minister's order cannot override the Regulations.
42. Mr. Naimur Rehman has, however, attacked the validity of the said order of the Chief Minister also from another angle as according to him, any order passed by a competent authority in order to be clothed with validity must be a reasonable order. Support was sought by the learned Counsel, firstly from the case of Manthar Ali M. Jatoi v. The Government of Sindh 1988 PLC (C.S.) 344 which was decided' by a Division Bench of this Court. It was observed by Naimuddin, J. Who delivered the judgment for the Division Bench that: "The competent authority may have discretion in the matter still then the discretion has to be exercised on well-settled principles, that is, it should be exercised in good faith having regard to all relevant considerations and for public purposes and in accordance with law and it should be exercised justly, fairly and reasonably. It should not be exercised arbitrarily or capriciously...."
' Reference was made by Naimuddin, J. To the following passage from Judicial Review of Administrative Action by De Smith: "The relevant principles formulated by the Courts may be broadly summarised as follows.
' The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations (emphasis supplied) and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously (underlining is ours). These serveral principles can conveniently be grouped in two main categories: failure to exercise a discretion, and excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account: and where an authority hands over its discretion to another body it acts ultra vires. Nor, as will be shown, is it possible to differentiate with precision the grounds of invalidity contained within each category."
43. The above principle was followed by the Supreme Court in Federation of Pakistan v. Ch. Muhammad Aslam 1986 SCMR 916. In this case, Shafiur Rahman, J. Observed:-- "The department's contention that it possessed untrammelled powers and could prospectively prohibit or control the imports is correct considering the wide amplitude of powers conferred by section 3(1) of Act XXXIX of 1950 and the nature of the right that a seeker of the import licence can claim. Such a power has been recognised by this Court in Zamir Ahmed's case. All the same, even such an extensive power has its limits. One such limit was spelt out in Zamir Ahmad's case and it is that vested rights cannot be allowed to be overridden unless it takes place by unequivocal words, by an organ or authority competent to impair or override the vested rights. The question will still remain whether the respondent writ petitioner at that stage of the proceedings had at all acquired any vested rights. The second limit now well-recognized is that all executive power has to be exercised fairly and justly, for advancing the object of the legislation. In other words every such exercise of power has to satisfy the test of reason and relevance."
44. The order passed by the then Chief Minister of Sindh, dated 21-8-1991 clearly indicates that no reasons have been assigned for passing of the said order. No doubt, the case of the petitioner was treated "as a special case", as is indicated by the order itself, but notwithstanding the same the order is not a speaking order. However, the order was passed on the application submitted to the Chief Minister by the respondent No,1 which enumerated various reasons on account of which indulgence by the Chief Minister was sought. The main reasons shown in the application were firstly that the proposed project was purely a residential project and the construction was being raised in accordance with the approved plans of the Karachi Building Control Authority and that the said respondent had paid millions of -rupees towards the additional floor charges etc..
Additionally it was pointed out that huge public money had been invested in the booking of the flats and that the structure of the building had already been completed when the said respondents were intimated about the withdrawal of their No-Objection Certificate. The respondent had also cited the example of some other projects in whose case No-Objection Certificate had been restored. Assuming that the reasons enumerated above had weighed with the Chief Minister while he waived the objection but none of the reasons enumerated in the said application appears to provide a reasonable ground for passing such an order if the said respondent had raised construction in clear violation of the Regulations. Even assuming that objection earlier raised in respect of construction of high-rise buildings by a general order can be waived by the Chief Minister in individual cases, infraction of the Regulations in this regard cannot be condoned in any manner contrary to the restrictions imposed by Regulation 16 in this behalf. The order passed by the then Chief Minister therefore, cannot regularise the said infractions. For the same reasons even notifications dated 24-12-1973 or 20-5-1976 cannot be invoked either by the Chief Minister or the Building Control Authority to permit construction of a high-rise building in contravention of the provisions of the Regulation.
45. We also find ourselves in agreement with the contention of Mr. Naimur Rehman that the respondents No,2 and 3 cannot permit major alterations in the provisions of the said Regulations without notice to residents of the locality and without inviting objections, if any, therefrom. Our attention was invited to Schedule D in Part II of the said Regulations. Clauses 4(1)(c) and (d) thereof lay down a procedure to be followed by the concerned authorities before use of the plot is permitted to be converted from residential to any other use. Clause 4(c) enjoins upon the concerned authority to issue a public notice inviting objections from the public and then to convey such objections to the Master Plan Authority before permitting conversion of a residential plot for any other use. Mr. Sharifuddin Pirzada has argued that the nature of the plot was not altered by respondent No,1 as the building in question was meant purely for residential purposes. The learned Counsel invited our attention to Schedule G to the said Regulations which pertains to classification of land. The said classification shows that land can be used for residential as well as commercial purposes. Reference has also been made to other uses of the land but we are not concerned with the same in the present case. Although nothing definite can be spelt out from clause (4) in Schedule D to indicate that utilization of a residential plot for raising a multistoreyed building would be deemed to be conversion as contemplated by the said clause but, in our opinion, the question is to be addressed from a different angle. In the case of Abul A'al Maudoodi v. The Government of West Pakistan PLD 1964 SC 673, S.A. Rahman, J. While referring to the cases of Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak PLD 1959 SC 45, Messrs Faridsons Ltd., Karachi v. Government of Pakistan PLD 1961 SC 537 and Province of East Pakistan v. Nur Ahmad PLD 1964 SC 451 observed: "that the principle of the natural justice requiring a hearing to be granted to a person before being condemned, applies not only to judicial or quasi-judicial proceedings but also to administrative proceedings provided that the relevant statute does not exclude its application and requires the administrative authority concerned to base its decision on an objective determination of facts..."
Somewhat similar observations were made by the Supreme Court in The University of Dacca v.
Zakir Ahmad PLD 1965 SC 90 as it was held that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice had to be observed if the proceedings might result in consequences affecting the person or property or other right of the parties concerned". This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness. The principle followed by the Supreme Court in the above case was once again followed in the case of Abdus Saboor Khan v. Karachi University PLD 1966 SC 536. It was once again emphasised that the principle embodied in the maxim audi alteram partem that "no one can be condemned unheard" would be applicable even in cases where orders have been passed by administrative tribunals or authorities which affect the rights of citizens in point of property or other rights. It was further held that mere omission from the relevant law, of a provision for notice, would not affect this position. The question as to the application of the principles of natural justice was also considered by the Supreme Court in the case of Fazal Din. However, in this case the requirement of notice had been expressly excluded by the provisions of the Punjab Town Improvement Act itself. A prior show-cause notice was, therefore, held to be unnecessary in the said case. Reference was also made in this case by the Supreme Court to section 20 of the West Pakistan General Clauses Act because, according to the said section, where power is given to do a thing in a particular manner by a statute, that power would include power to amend, vary, rescind or alter the act or thing done in the same manner and subject to the same conditions and limitations. It was held by the Supreme Court in the said case that, if any action is likely to affect adversely the person or property or other right or privilege or benefit of someone else then according to the principles of natural justice, he must be given a fair opportunity of presenting his case. This rul0 was, however, held to be subject to the intent of the statute itself and therefore, if the statute provides to the contrary then even the provisions of section 20 of the West Pakistan General Clauses Act would be excluded because the same would apply in case nothing repugnant thereto is provided in the statute concerned. In the present case, therefore, even if we accept the contention of Mr. Sharifuddin Pirzada and assume that mere raising of a high-rise building does not tantamount to conversion of use of the plot from residential to non-residential, the principle enunciated by the Supreme Court in the above case would apply in case of any major alteration made in the provisions of the aforesaid Regulations because as was found to be the case in Fazal Din's case, the requirement of notice was excluded by the express words found in the Town Improvement Act. No analogous provision to such effect can be found in the Regulations. In the present case, the permission granted to the respondent No,1 to construct ground plus nine storeys in clear violation of the density standards provided for in the said Regulations was a major deviation from the relevant provisions of the said Regulations and such permission, in any case, could not be granted without suitable amendment of the Regulations as provided by the law and after giving notice to the residents of the residential area concerned.
46. It was lastly contended by Mr. Sharifuddin Pirzada that Suit No,411/90 had been filed by the petitioners and some other persons against respondents Nos.2 and 3 and Messrs Amin Builders who had proposed to construct a high-rise building in the same area. However, that suit was compromised and withdrawn by the petitioners against the defendants. Consequently, according to the learned Counsel, the grievance of the petitioners is not bona fide.
47. The record of the said suit indicates that the said suit had been compromised under Order 23, Rule 1, C.P.C. And as a result of the compromise, the suit was withdrawn by the plaintiffs. A perusal of the application (C.M.A. No,1788/91) filed on behalf of the petitioners and other plaintiffs in the said suit under Order 23, Rule 1, C.P.C. Indicates that the Karachi Development Authority and the Karachi Building Control Authority, who were defendants Nos.2 and 3 respectively in the said suit, had cancelled the No-Objection Certificate granted for construction of the said building. The application further indicates that the Karachi Metropolitan Corporation, which was defendant No,4 in the said suit, had also cancelled such No-Objection Certificate. Consequently, the suit was withdrawn by the plaintiffs. The application further indicates that the plaintiffs had reserved their right to file a fresh suit in case the said defendants permitted the defendant No,1 to raise any construction beyond two floors. Consequently, it appears that the suit had been withdrawn by the petitioners because their grievance against the defendants in the suit had ceased to exist. The contention, therefore, in our opinion, does not carry much force.
48. Mr. Sharifuddin Pirzada has also contended that a number of high-rise buildings are coming up in the close vicinity of the area where the petitioners are residing but no grievance has been raised by the petitioners in this behalf. Unless the rule of estoppel is stretched and made applicable in the present case, the mere failure on the part of the petitioners to object to the construction of the said buildings cannot be pressed as a valid ground against the maintainability of the present petition.
The rule of estoppel is a rule which debars a party on account of its conduct from taking a plea or adopting a D particular course of action. The essence of the rule lies in the inconsistency between the previous conduct of the party and the course which a party wants v to pursue. In the present case, there is no question of applying the rule of estoppel as apart from respondents Nos.2 and 3 who could have intervened to prevent the builders from raising the said construction, the respondent No,1, according to his own case, was not even remotely concerned in the raising of the said high-rise buildings. No doubt, inconsistent position in litigation or election of remedies impeaching a transaction or previous acquiescence can be E cited as examples attracting the rule of estoppel, but in the present case the rule cannot be invoked at all. In fact, no rule of jurisprudence has been cited by Mr. Pirzada by which the petitioners would be debarred from maintaining the present petition under the said circumstances. The contention, therefore, has no force. We are conscious of the fact that the respondent No,1 has almost completed the structure, permission for which was granted to it by the respondents Nos.2 and 3. However, it hardly needs to be emphasized that if any loss is incurred by the first respondent in case it is asked to demolish the construction raised by it in contravention of the relevant provisions of the Regulations, the respondent must only blame itself for the loss because the other respondents acted at the behest of the said respondent. Reference in this regard may be made to the case of Pritabha Cooperative Housing Society Ltd. v. State of Maharashtra AIR 1991 SC 1453 where the order of the local authority asking the petitioner to demolish eight upper floors of its building, the construction of which was in violation of the relevant building regulations, was upheld both by the High Court as well as the Supreme Court of India. However, in any case, contravention of the law by the builders cannot be permitted. This will only encourage them to first contravene the law, and subsequently claim benefit of such contraventions.
49. In the result, we allow this petition by declaring that the orders passed by respondents Nos. 2 and 3 permitting construction of ground plus nine floors in the said building being in contravention of the said Regulations, are without authority and of no legal effect. We further direct respondent No,2 to take action against the first respondent in accordance with Regulation 16 of the said Regulation and/or any other regulation and if satisfied, by demolition of such construction that has been raised in violation of the said Regulations. The parties shall respectively bear the costs of this petition.