' SALEEM AKHTAR, J.---The petitioners seek leave to appeal against the judgment of the High Court whereby Constitution petition filed by respondents No,1 and 2 was allowed in the following terms:- "We would therefore allow the above petition to the extent of declaring that denial of approval of the six additional floors on the ground that maximum utilization of plot was allowed to them, being discriminatory and violative of Article 25 and they are entitled to the same on payment of fees of Rs,80 per square yard per each floor. The respondents are directed to approve the plans submitted with the petition for the said floors In the circumstances of the case, the parties are directed to bear their own costs."
' Respondents No,1 and 2 claim to be the owners of plot of land bearing Survey No,13 Sheet F.T.4, measuring 4,524 square yards or thereabout, situated at main Clifton Road, Karachi. From the facts stated in the petition it seems that the plan was submitted by M/s. Orient Builders for basement plus ground floor and seven additional floors with one-third covered area on 7-1-1985.
Subsequently M/s. Orient Builders sold the plot to Soofi Muhammad Ismail and his son Tariq Sheikh.
These persons sold their share in the plot to respondent No,2 and thus respondents No,1 and 2 became the lessees of the said plot. It was due to change of title that the proposal submitted by M/s. Orient Builders did not materialise. On 26-2-1985 the residents of the area filed objection against the approval of the multistoreyed building as well as conversion of the plot from residential to commercial. It was pleaded that high rise building would result in congestion, light, and ventilation problems, shortage of water supply and stress on drainage system as well as related problems consequent upon a conversion of a low density area into a high density area. On 19-1- 1987 respondent No,1 submitted a building plan for residential bungalow having ground plus two storeys only which was rejected on 9-3-1987 as it was contrary to Regulations. Respondents No,1 and 2 however maintained that as no reply was received from the petitioners for sixty days, after notice they started construction. As petitioner No,1 interfered with the wortc they filed Suit No,882/1987 before the 8th Senior Civil Judge, Karachi South. The learned Civil Judge allowed the commercialisation on payment of charges to petitioner No,2 and to carry out construction strictly in accordance with the approved plan. The petitioners filed appeal against this judgment which was dismissed and it was ordered that if none of the petitioners is prepared to accept the commercialisation charges the same may be deposited in Court. This judgment was challenged in revision application before the High Court which was dismissed and leave to appeal was also refused by the Supreme Court. To resolve the dispute respondents No,1 and 2 submitted fresh plan on 27-3-1989 for construction of shops on the ground floor and residential units on the first and second floors. As nothing positive was heard from the petitioners on expiry of 60 days, respondent No,1 referring to Article 13 (3) of the Karachi Building and Town Planning Regulation notified that the plan has come into operation. This was denied by the petitioners as according to them plan was submitted on 15-5-1989 and it was rejected. Respondents No,1 and 2 filed Constitutional Petition No,893/1988 which was allowed and rejection of the plan was declared to be without jurisdiction mainly for the reason that it was for construction of ground plus two storeys and could not be termed as high rise building and further that the petitioners failed to take any action for 60 days.
2. Respondents No,1 and 2 again raised dispute claiming that the plan should be revised. They filed C.P. No,1381/1992 which was amicably settled and they were allowed to construct basement, ground floor and three additional iloors. Thereafter by letter dated 4-8-1992 respondents No,1 and 2 demanded that construction of six additional floors may also be permitted. In this way they wanted to construct nine additional floors on the plea that on the opposite side of the main Clifton Road there are a number of high rise buildings. To press their demand respondents No,1 and 2 filed C.P.
No,2038/1992 seeking the following reliefs:- "(a) declare that the inaction/refusal/neglect of respondents in permitting the 6 additional floors and approving the additional plans is without lawful authority and of no legal effect;
(b) direct the respondents to permit/grant the approval of 6 additional floors on charging fees of Rs,30 per square yard for each floor and to approve the plans submitted with this petition for the said floors without any further delay;
(c) direct respondent No,1 also to include the additional 6 floors, that is, area for sale, in the already issued N.O.C. For advertising and booking;
(d) prohibit and restrain the respondents from interfering with the petitioners' raising construction on the plot in question in accordance with the plans already approved and also for the 6 additional floors according to the plans submitted with this petition themselves or through any agency in any manner and by any process whatsoever;
(e) direct the respondents to bear the costs; and
(f) grant any other relief which this Hon'ble Court deems fit and proper in the circumstances of the case."
3. By the impugned judgment the petition was allowed holding that denial of approval of six additional floors was discriminatory and violative of Article 25. The learned Judges seem to be impressed by the fact that Karachi Municipal Corporation, the lessor had no objection to the construction of six additional floors and so was the case with the Government of Sindh, respondent No,3. It was also noted in the impugned judgment that on the main Clifton Road opposite to the petitioners' plot there are several buildings consisting of more than six floors.
4. Mr. Naimur Rahman, learned Standing Counsel contended that in the facts and circumstances of the case Article 25 was not appliable, particularly so when respondents No,1 and 2 under an agreement had obtained the permission for construction of basement, ground plus three floors.
5. The application of Article 25 is not on the basis of any mathematical calculation or scientific exaction. It depends upon the facts and circumstances of the case inasmuch as an intelligible differentia is permissible provided it has nexus with the main object of such action. Mr. Sharaf Faridi, learned counsel for respondent No,1 contended that in view of the permission granted to other builders who have already constructed or are constructing their buildings, there was a clear violation of Article 25.
6. The following questions inter alia arise for consideration:-
(i) Whether in the facts and circumstances of the case Article 25 could be applied particularly in view of the fact that multistoreyed buildings on the Clifton Road consisting of more than three floors have been constructed?
Is the applicability of Article 25 dependent on the facts and circumstances of each case existing on the day when permission was being sought/granted?
(iii) Does the change of circumstances and facts during the period permission for construction of other multistoreyed buildings in the vicinity was granted and on the date respondents applied for multistoreyed building can affect the applicability of Article 25?
' These questions have become of vital importance for Karachi as it is possible that in a locality the permission for multistoreyed buildings was granted at a time when there existed no multistoreyed buildings in that area, but if sufficient number of multistoreyed buildings have been allowed to be constructed, will it mean that on all plots in that area the builders should be allowed to raise multistoreyed buildings irrespective of the fact that such construction is likely to create inconvenience, infringement of air and light, cause nuisance, put pressure on civic amenities and above all environmental pollution. It is now an internationally recognized principle that if there is conflict between a personal right and environment, the personal right must yield in favour of environment.
7. The petitioners have filed application for stay. The operation of the impugned order is stayed.
Respondents No,1 and 2 are restrained from raising construction beyond basement and ground plus three floors as allowed by the approved plan. Respondents No,1 and 2 shall not make any booking nor advertise in respect of the building beyond basement, ground and three additional floors.
8. The learned counsel for the respondents have submitted that considering the nature of the case and the investment made by respondents. No,1 and 2 the appeal may be ordered to be fixed at an early date. The request seems to be reasonable. The office may place the file before the Hon'ble Chief Justice for necessary orders.