' AJMAL MIAN, J.--By this common judgment, we intent to dispose of the above two appeals which are with the leave of this Court and are directed against a common judgment dated 12-12-1991 passed by a Division Bench of the High Court of Sindh in Constitution Petition Nos.D-727 of 1990, filed by respondents Nos.2 and 3 for the following reliefs:-- "The petitioners, therefore, pray in the interest of justice that this Hon'ble Court be pleased to direct the respondent Nos.2 to carry out and perform its statutory duties and in performance of its duties to restrain the respondent No,1, his servants, his men, his agents, and successors, from unauthorised and illegal activities and after rejecting the said respondent his employees, and agents from Plot Nos. 248, C.P. And Berar Cooperative Housing Society, Blocks 7 and 8, Karachi, to demolish the illegal and unauthorised constructions thereon and further be pleased to grant any other relief/reliefs in favour of the petitioners and against the respondents in the circumstances of this case and grant costs of this case to the petitioners."
2. The brief facts are that respondents Nos.2 and 3 own residential plots bearing Nos.249 and 342 situated in Blocks 7 and 8 of C.P. And Berar Cooperative Housing Society, Karachi, hereinafter referred to as the Society; whereas appellant in above Civil Appeal No, 677 of 1992 (Abdul Razak) is the owner of plot bearing No,248 situated in the Society area. According to the averments in the appeal, the plot of respondent No,2 is adjacent to the plot owned by Abdul Razak; whereas plot of respondent No,3 Syed Muslehuddin Ahmed, is in front of Abdul Razak's plot. Abdul Razak, after demolishing a residential house, started raising construction. When the above respondents Nos.2 and 3 discovered that he intended to raise high-rise building having shops on its ground floor, alongwith other residents of the area, they approached the Director-General, Karachi Development Authority, and the Karachi Buildings Control Authority (respondent No,1), hereinafter referred to as the Authority. Pursuant to the above complaint, Deputy Controller of Buildings issued a notice dated 21-5-1991 for removal of unauthorised construction. Thereupon, Abdul Razak filed a civil suit in the Court of 1st Senior Civil Judge, Karachi (East). In view of the above suit, no further action was taken on the above notice dated 21-5-1991. After that, respondents Nos. 2 and 3 filed the above Constitution petition, which was resisted by the appellant Abdul Razak as well as appellant in Civil Appeal Nos.679 of 1992 (Karachi Building Control Authority) and it was pleaded that under section 19 of the Sindh Building Control Ordinance, 1979, hereinafter referred to as the Ordinance read with Regulations 16(1) and 20 of the Karachi Buildings and Town Planning Regulations, 1979, hereinafter referred to as the Regulations, the Authority is competent to compound any offence under the Ordinance on such terms and conditions as may be prescribed. The plea taken by Abdul Razak was that his construction was regularised. However, the learned Judges of the Division Bench allowed the above petition in the following terms:- "Respondent Abdul Razak has not specifically denied in his counter-affidavit that he is not exceeding the maximum permissible plinth area or that he has not left minimum open space required by the Regulations to be kept open between structure and the compound wall. It is, therefore, the duty of respondent No,2 to ensure that the building erected or being erected as in accordance with the Regulations. This petition is accordingly allowed and the respondent No,2 is directed to ensure that the building erected or being erected by the respondent No,1 is in accordance with the Regulations and to enforce the relevant Regulations in respect thereof."
Thereupon, the appellant Abdul Razak in Civil Appeal Nos.677 of 1992 filed Civil Petition for Leave to Appeal Nos.145-K of 1992, and the appellant-Karachi Buildings Control Authority (i,e, the Authority) in Civil Appeal Nos.679 of 1992 filed Civil Petition for Leave to Appeal Nos.149-K. Of 1992, which were granted to consider the questions, whether the learned Judges of the Division Bench have placed proper construction on the relevant provisions of the Ordinance and the Regulations, and whether in the present case, the direction issued by them upon respondents Nos.2 and 3's above petition was warranted by law.
3. The appellant Abdul Razak in Civil Appeal No,677 of 1992 was represented by Mr. Azhar All Siddiqui, learned ASC alongwith Mr. M.S. Ghaury, learned A.O.R.; whereas in Civil Appeal No,679 of 1992, the Authority was represented by Mr. Suleman Kassam, learned ASC with Mr. A. Aziz Dastgir, learned A.O.R.
' Respondent No,3 in the Civil Appeal No,677 of 1992, Syed Muslehuddin Ahmad, who is respondent No, 2 in Civil Appeal No,679 of 1992 appeared in person and defended the impugned judgment.
' Mr. Suleman Kassam, learned ASC has urged as follows:--
(I) That under Regulation 16(24 of the Regulations, read with section 19 of the Ordinance, the Authority was competent to compound the breach of the Regulations subject to the restrictions contained in sub-clauses (i) to (vi) of clause (c) thereof and, therefore, the High Court was not justified in holding that the Authority could not have compounded the breach of the Regulations without getting the breach rectified;
(ii) That the High Court was not justified in holding that the word "or" employed between clauses
(b) and (c) in para. 2 of Regulation 16 is to be read as "and".
(iii) That as the plot in dispute was of a size less than 300 sq. Yards, 7-1/2 feet open space in the sides was not required. Mr. Azhar Ali Siddiqui, learned ASC for the appellant Abdul Razak has contended as under:--
(i) That in the memo. Of writ petition, respondent No,3 Syed Muslehuddin Ahmed, has not specified violation of any specific Regulation and, therefore, the petition was vague;
(ii) That since in the memo. Of writ petition the size of the plot was not mentioned, the appellant Abdul Razak in his counter-affidavit has not adverted as to the size of the plot in dispute;
(iii) That since the Authority had regularized the unauthorised construction, respondent No,3 had no cause to urge and that the High Court was not justified in granting the above relief.
' Respondent No,3, Syed Muslehuddin Ahmed, has submitted as follows:--
(1) That factually the appellant Abdul Razak's building plan was approved by the Authority through its letter dated 12-4-1990 and that in deviation of the approved plan of 1990, the above appellant had started raising construction, of which the Authority took notice in response to respondent's representations/applications inasmuch as notice dated 21-5-1990 was served by the Authority on the appellant, Abdul Razak pointing out therein that the excavation work was in progress in excess area contrary to the approved plan, but the Authority instead of getting the above breach rectified, regularised the same in contravention of the Regulations without disclosing the reasons;
(ii) That the Authority has no power to regularise unauthorised constructions which are in breach of the Regulations and which may prejudice the third parties.
5. Before dealing with the above contentions it may be pertinent to observe that during pre- partition days, Karachi city was considered as a well-planned city, it had very wide roads, it was known for its cleanliness, its population was about 3 to 4 lacs. However, upon the creation of Pakistan, there was influx of refugees from India. Karachi was made capital of the then newly- established State of Pakistan. In order to have expansion of the Karachi city on the basis of planning, the Karachi Improvement Trust Act, 1950 (Act XLVIII of 1950) was enacted in May, 1950, the object of which was given in the Preamble as follows:-- "Whereas it is expedient to make provision for the development and expansion of the Capital of the Federation and certain areas in its vicinity by opening up congested areas, laying out or altering streets, providing open spaces for purposes of ventilation or recreation, demolishing or construction buildings, acquiring land for the same purposes and for the rehousing of persons displaced by the execution of development schemes, and otherwise as hereinafter appearing; ' And whereas it is expedient that a Board of Trustees should be constituted and invested with special powers for carrying out the objects aforesaid;"
6. The above Act was substituted by Karachi Development Authority Order, 1957 (President's Order No,5 of 1957), hereinafter referred to as the Order. The object of the Order was given in the Preamble as under:--- "WHEREAS it is expedient to make provision for the development and improvement of certain area in the Karachi Division by opening up congested areas, laying out or altering streets, providing public amenities like parks, gardens and playgrounds, executing works for water supply and sewerage or by demolishing, improving or constructing buildings; for the acquisition of land for such development or improvement, including the rehousing of persons affected thereby and certain other persons, for the preparation and execution of development or improvement schemes, building research schemes and similar other schemes, and for matters connected therewith or incidental thereto;"
' The Order is still in force. However, the Ordinance was promulgated in March, 1979, with the object to regulate the planning, quality of construction and building controls, prices charged and publicity made for disposal of buildings and plots by builders and Societies and demolishing of dangerous and dilapidated buildings in the Province of Sindh. It may be observed that section 21A(1) empowers the Authority to frame regulations not inconsistent with the provisions of the Ordinance and the rules made thereunder for carrying out the purpose of the Ordinance inter alia in respect of the items mentioned in subsection (2) thereof. However, subsection (3) thereof lays down that the Regulations shall until the same are framed under the above section, be deemed to be the Regulations so framed provided that they are not inconsistent with the provisions of the Ordinance and the rules framed thereunder.
7. It appears that even after the enforcement of the Ordinance the power to frame various types improvement schemes referred to in Article 30 of the Order is still with the K.DA. The Authority has been created under the Ordinance for the objects referred to hereinabove. Section 6 of the Ordinance provides that 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. Whereas section 7A provides that 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 occupant be ordered by the Authority or any officer, of the Authority authorised in this behalf to be demolished at the cost of the builder in the case of a public building and the owner in the other cases.
8. It may be pointed out that section 19 of the Ordinance envisages imposition of penalty by providing in subsection (1) thereof that whosoever contravenes any provision of the Ordinance shall be punished with simple imprisonment for a term not exceeding two years or with fine less than Rs,20,000 or with both and if the offence is continuing one, further fine of Rs,500 for each day after the first commission of offence. It may further be pointed out that subsection (1A) which was incorporated by the Sindh Building Control (Amendment) Ordinance, 1982 (Sindh Ordinance No,III of 1982 dated 6-3-1982) lays down that the Authority or any person authorised by it in this behalf may compound any offence under the Ordinance on such terms and conditions as it may be prescribed. Whereas subsection (2) provides that no Court shall take cognizance of an offence under the Ordinance except upon a complaint in writing made by the Authority or by any person authorised by it.
9. It may be pertinent at this juncture to refer Regulations 16, 20 and 25 of the Regulations, which read as follows:-- "Regulation Nos.16: 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; ' OR
(b) to alter the works so as to bring it into conformity with these regulations; ' OR
(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 and Environmental Control Department (Authority under Sindh Buildings Control Ordinance, 1979) shall be obtained before compounding of the offence."
"Regulation No,20: "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 on 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.
(2) In the event of non-compliance with the (regulation) made under subsection (1) above, the concerned authority shall have power to order cessation of work or order demolition of that much of the construction as contravenes any of the provision of these regulations and the expenses thereof shall be realized from the owner."
"Regulation No,25:
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 covenants 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, cooperative housing society, generally or in respect of building operation in any particular area."
' A perusal of the above-quoted regulations indicates that they are overlapping with each other and cover the same field. They empower the Authority to take any of the actions mentioned therein. Clause 1(a) of para. 1 of Regulation No,16 empowers the Authority to stop construction work if it is violative of any. Of the Regulations, whereas under clauses (b) and (c), the Authority can issue a show-cause notice for the purpose mentioned therein. It may further be noticed that under para. 2 of the above Regulation the Authority has been empowered to take actions under clauses (a), (b) and (c) thereof if the person concerned fails to show cause in response to the notice of show cause issued either under clause (b) or clause (c) of above para.
1. It may be pointed out that Regulation Nos.2 deals inter alia with regularization of unauthorized construction if the same can be brought in conformity with the Regulations, whereas Regulation Nos.25 provides that the Authority may refuse permission to erect or re-erect a building.
10. We may now revert to Mr. Suleman Kassam's above contentions (i) and (ii), which can be conveniently taken up together. It is an admitted position that respondent No,3 and the other residents of the Society inter alia approached the Authority complaining about the then intended unathorised construction. Thereupon, the Authority issued above notice dated 21-5-1990, wherein it was pointed out to the appellant Abdul Razak that the excavation work which was in progress, was in excess area contrary to the approved plan. He was given 24 hours to rectify the above unauthorised construction work. It appears that upon the receipt of the above notice, the appellant Abdul Razak filed a civil suit in the Court of a Civil Judge at Karachi and obtained a status quo order. Under the cover of the above status quo order, he continued to go on with the unauthorised construction work. The Authority showed its inability to take any further action pursuant to the above notice on the ground that the matter was sub judice in the Civil Court. In the above factual background, respondents Nos.2 and 3 filed the above writ petition. In the above petition they also filed an application for an ad interim injunction against the appellant Abdul Razak. In reply to the above application, the appellant Abdul Razak filed a counter-affidavit, in which in para. 9 he made the following averment:- "9. That the contents of para. 6 are not denied that the area is residential one, but at the same time it is re-emphasized that the respondent No,1 is building only a residential house as approved and is not building shops or flats or high rise building which presumption is concocted and is the figment of the imagination of the petitioner. The petitioners have raised a false alarm and created a bogey of construction of shops, flats and high rise building in order to make out a false case with ulterior motives."
' A Division Bench of the Sindh High Court by its order dated 31-10-1990 on the basis of the above averment contained in para. 9 coupled with the oral commitment made by the learned counsel for the appellant Abdul Razak, disposed of the above stay application in the following terms:- "Apart from the above statement of respondent No,1 contained in the counter-affidavit, the learned counsel for respondent No,1 categorically stated before us that the building which is being constructed on the disputed plot is purely a residential building and that respondent No,1 has neither constructed any shops or flats on the plot nor has any intention to raise any such construction. It is also categorically stated by the learned counsel that the building constructed on the plot comprised of only ground plus two stores approved by the Building Control Authority and that his client has no intention to raise any further construction.
' In view of the above statement of respondent No,1 which is contained in the counter-affidavit and that of his learned counsel made today before us and which we have recorded, any breach thereof will be treated as a breach of injunction, we do not think it necessary to make any further order on this application which stands disposed of accordingly."
11. It is evident from the above-quoted para. 9 of the counter-affidavit and the statement made by the learned counsel for the appellant Abdul Razak that he made commitment that he would not construct shops or flats or high-rise buildings on the plot in dispute. However, while the above petition was pending, the appellant Abdul Razak completed the construction work. According to respondent No,3 the appellant Abdul Razak has constructed six flats comprising 24 bedrooms, 12 bath rooms, six T.V. Lounges on the disputed plot, the size of which is only 273 sq. Yards.
12. Admittedly the appellant Abdul Razak started construction work in deviation of the approved plan which was approved as pointed out hereinabove on 12-4-1990. It is also an admitted position that the Authority served above notice dated 21-5-1990 calling upon appellant Abdul Razak to rectify the above unauthorised construction within 24 hours. As stated hereinabove, the appellant Abdul Razak gave above commitment to the effect that he would not construct shops or flats or high-rise buildings before the Division Bench during the hearing of the stay application but apparently he completed the building not in accordance with the original plan approved by the Authority. He got regularisation plan approved during the pendency of the above writ petition, but the High Court allowed the above writ petition in the above terms for the following reasons:-- "It could not, therefore, have been the intention of the legislature to confer a power on the Authority to condone, by regularising, erection of a building so erected as to adversely affect and endanger the health and safety of the citizens. The intention evidently was that any building erected in violation of the Regulations must either be demolished completely or in part, as may be necessary, or so altered as to conform to the Regulations. Further, it would be absurd to say that on the one hand regulations have been framed for the purpose of ensuring the safety and the health of the citizens and on the other hand that the legislature intended to confer power on the Authority to condone violation of those very regulations and thus defeat the object and the purpose thereof.
The conjecture "or" occurring between paras. (b) and (c) of Regulation 16(2) has, therefore, to be read as "and". That being so, there is no power in the Authority and any of its officers to condone violation of the Regulations by regularising a building erected in contravention thereof. Authority and/or its officers can only compound the offence after a delinquent builder has put the building in order in accordance with the Regulations pursuant to the action taken under orders passed either under Regulation 16(2)(a) or Regulation 16(2)(b) of the Karachi Building and Town Planning Regulations, Part 1..
' ..In view of the object and the purpose of the Regulations, we are of the view that the word "may" ought to be read as "must" so that there is no discretion in the Authority to sanction plans which violate the Regulations intended for public benefit. If it were held otherwise, the Authority would have the power to sanction plans even of those buildings which have been erected in breach of the terms and conditions of a lease. The legislature could not possibly have intended the Authority to have such a power by exercise of which a person may be encouraged to commit breach of the terms of a lease which is binding on him."
' A perusal of the above-quoted portions of the impugned judgment of the High Court indicates that the High Court has taken the view that the word "or" appearing between sub-paras. (b) and
(c) of para. 2 of Regulation 16 is to be read as "and" and, therefore, there was no power in the Authority and any of its officers to condone the violation of the Regulations by regularising a building erected in contravention thereof. The High Court also opined that the word "may" used in above-quoted Regulation No,25 which empowers the Authority to refuse permission to erect or re- erect a building in any manner inconsistent with any building or zoning regulations or restrictions or order or direction.
14. According to Mr. Suleman Kassam, the word "or" employed between sub-paras. (b) and (c) of para. 2 of Regulation No,16 could not have been construed as the word "and" as to make them readable conjunctively and not disjunctively. In this regard, it may be pertinent to quote the following passages from Maxwell on the Interpretation of Statutes, 12th Edition at pages 232 and 233 and from Crawford on Statutory Construction, 1940 Edition at pages 322 and 323:- "Passage from the Maxwell on the Interpretation of Statutes. 12th Edition.---"And" and "or"
' In ordinary usage, "and" is conjunctive and "or" disjunctive. But to carry out the intention of the legislature it may be necessary to read "and" in place of the conjunction "or" and vice versa."
' Passage from the Crawford on Statutory Construction: "188. Disjunctive and conjunctive words.--In ordinary use the word "or" is a disjunctive that marks an alternative which generally corresponds to the word "either". In face of this meaning, however, the word "or" and the word "and" are often used interchangeably. As a result of this common and careless use of the two words in legislation, there are occasions when the Court, through construction, may change one to the other. This cannot be done if the statute's meaning is clear, or if the alteration operates to change the meaning of the law. It is proper only in order to more accurately express, or to carry out the obvious intent of the legislature, when the statute itself furnishes cogent proof of the error of the legislature, and especially where it will avoid absurd or impossible consequences, or operate to harmonize the statute and give effect to all of its provisions."
15. From the above-quoted passages from the above celebrated treatises on the Interpretation of Statutes, it is evident that the words "and" and "or" are interchangeable. However, in ordinary usage the word "and" is conjunctive and the word "or" is disjunctive. But to implement the legislative intent, it may become imperative to read "and" in place of the conjunction "or" and vice versa. This cannot be done if the meaning of the relevant provision of the statute is clear or if the above construction will operate to change the meaning of the law.
16. In the present case, since the word "or" appears twice between clauses (a) and (b) and clauses
(b) and (c) of para. 2 of Regulation No,16 and as sub-clauses (i) to (vi) of sub-para. (c) expressly provide the cases in which the offence cannot be compounded, we are inclined to hold that the word "or" used between clauses (b) and (c) of para. 2 of Regulation No,16 is to be read as "or" and not as "and" as held by the High Court. However, this does not affect the result of the present case.
The above sub-clauses (i) to (vi) of clause (c) of para. 2 of Regulation No,16 make it clear that in the cases covered by them, the offence cannot be compounded, namely, if the building works or part thereof violate any requirement of the provision of any sanctioned site development scheme, the building works obstruct any future road widening scheme of any concerned authority, or the building works or part thereof exceed the maximum permissible height and number of storeys allowed under the Regulations, the building works extend the property limits except otherwise provided is section No,34 or the Building works or part thereof violate or any other safety requirement or for any other violation of the master plan not falling in the above category. Similarly the word "may" used in Regulation No,25 is to be construed as "may" and not "must" as has been held by the High Court. But it does not mean that discretion contained therein can be exercised by the Authority in derogation or violation of the provisions of the Ordinance and the Regulations.
' The High Court, after referring to the relevant regulations, concluded as under:-- "The object and the consideration for the rule requiring minimum open spaces to be left in any building are thus, to ensure safe and hygienic conditions of living for the citizens in general. They do not concern any one individual alone.
' The regulations contained in Chapters 7 and 8 relating to drainage and sanitation and fire precautions are similarly intended to ensure healthy and safe living for the public in general."
17. We are inclined to concur with the above conclusion of the High Court. We may observe that the discretion given to the Authority under section 19 of the Ordinance or under Regulation No,16 to compound an offence or discretion given by Regulations Nos.20 and 25 is subject to the well- settled principle of legal jurisprudence that discretion is to be exercised fairly and reasonably and not at the cost or prejudice of third parties.
' We may also point out that there is marked distinction between a criminal liability under section 19 of the Ordinance and a civil liability under the Regulations to rectify irregularity/breaches. The Authority may compound criminal liability but it cannot regularise a breach of the Regulations which is of the nature which has changed the complexion or character of the structure, which was originally intended to be erected or of the plot. In such cases, it can be said that the Authority has no discretion in fact and law. The plot in dispute was intended to have residential bungalow, it was not earmarked as flats' site. It is a matter of common knowledge that in the various K.DA. Schemes the plots are categorised as residential plots, flats' sites, commercial plots and industrial plots. We may point out that even under the Order, the K.DA. Is not authorised to change the use of any amenity plot without inviting objections and without obtaining the order of the Government. In this regard, it may be advantageous to reproduce Article 52A of the Order, which reads as follows:-- "52-A.--(1) The Authority shall, immediately after any housing scheme is sanctioned by, or altered with approval of, Government, submit to the Commissioner the details including the survey numbers, area and location of each plot reserved for roads, hospitals, schools, colleges, libraries, playgrounds, gardens, parks, community centers, mosques, graveyards or such other purpose and the Commissioner shall notify such details in the official Gazette.
(2) The Authority or the Housing Society may at any time prior to utilization of any plot reserved for the purpose mentioned in subsection (1), apply to the Commissioner for conversion of such plot to any other purpose.
(3) The Commissioner shall, on receipt of an application under subsection (2), invite objections from the general public through a notice published in one English and one vernacular leading local daily newspaper and the objections, if any, shall be submitted to the Commissioner within 30 days from the date of the publication of the notice.
(4) The Commissioner shall, after considering the objections received under subsection (3) and hearing such persons as he may consider necessary forward his recommendations alongwith the application and other connected papers to Government for orders."
18. It may be stated that in spite of presence of the above unambiguous Article in the Order the successive Provincial Governments overlooked the above Article and converted amenity plots into commercial or residential plots and thereby denied to the residents of Karachi inter alia parks and playgrounds which contributed towards environmental pollution in the city. A tendency has also developed to convert the use of a residential plot into commercial or instead of constructing residential units in the form of bungalows to erect flats.
19. Respondent No,3 in the memo. Of above writ petition inter alia in paras. 15 to 17 has highlighted the breaches on the part of the appellant Abdul Razak and the effect of the above breaches on him and the other residents of the locality as under:-- "15. That the respondent No,1 has also encroached upon on compulsory open space in violation of the approved plan; which have not been noticed by the respondent No,2/Authority and a rough sketch is attached herewith as Annexure "K" showing encroachment on compulsory open space.
16. That the respondent No, 1, therefore, in gross and direct violation of the approval granted by the respondent No,2, in violation of Ordinance of 1979 and regulations, is proceeding with the construction of building and is in collusion with respondent No,2 and in total disregard of the rights of the petitioners are carrying on construction work and have erected R.C.C. Columns and fixing shutterings for R.C.C. Roof of ground floor.
17. That the construction of a commercial building directly adjacent and opposite the petitioners' house will seriously impair the right of enjoyment of property, their privacy will be violated, the entire area including the petitioners' house would suffer from shortage of electricity, water and the narrow sewerage lines, designed to provide for residential houses will be chocked and further the area will suffer from traffic congestion and the narrow street will be blocked by the great number of vehicles moving as well as parking."
19-A. The Authority though has allegedly regularised the present construction through its letter dated 12-2-1991 but has not stated any reason for doing so. It has not adverted to the question, whether the irregularities/breaches were of the nature, which could have been regularized. The High Court in the judgment under appeal has highlighted that the breaches of the Regulations were such which are prejudicial to safe and hygienic conditions of living for the citizens and detrimental to health. In this view of the matter, the above regularisation is in violation of the spirit of the Ordinance and the Regulations. The power to regularise contained in the Ordinance and the Regulations is intended and designed to be exercised when irregularity is of the nature which does not change the complexion or character of the original proposed construction nor it adversely affects third parties' rights/interests. At this juncture it may be pertinent to quote a passage from Encyclopaedia Britannic, 1963 Edition, the goals of modern City planning at page 816, which reads as follows:-- "Goals of Modern City Planning.--The ultimate goals were social, although the plans themselves related to physical things. They were deeply involved with intermediate economic objectives. The expression of the goals was, of course, coloured by the culture of the society seeking them. In the U.S. And countries following western European traditions, the ideal urban environment would reconcile the maximum opportunity for individual choice with protection for the individual from the adverse effects of the actions of others. Within this philosophy, city planning would probably seek:
(1) the orderly arrangement of parts of the city - residential, business, industrial, etc., ' so that each part could perform its functions with minimum cost and conflict; (2) an efficient system of circulation within the city and to the outside world, using to the maximum advantage all modes of transportation; (3) the development of each part of the city to optimum standards, as of lot size, sunlight and green space in residential areas, and parking and building spacing in business areas; (4) the provision of safe, sanitary and comfortable housing, in a variety of dwelling types to meet the needs of all families; (5) the provision of recreation, schools and other community services, of a high standard of size, location and quality; (6) the provision of adequate and economical water supply, sewerage, utilities and public services.
' In any community, these goals might be supplemented by special goals, such as the preservation of a historical area, or the protection of property values, or the efficient conduct of Government. On occasion, the goals of some powerful special interests might be inconsistent with those of others; e.g. The preservation of slum property values and the provision of adequate housing. Furthermore, the statement of ideal goals required the use of relative terms, such as "adequate," "high standard," etc., which are relative rather than absolute, and change from time to time. Therefore inherent in the concept was the recognition that an ideal is not a fixed objective, but itself will change; that the ideal city can be striven toward, but never achieved."
20. From the above-quoted passage from Encyclopedia Britannica, it is evident that the concept of modern city planning inter alia envisages the orderly arrangement of parts of the city - residential, business and industrial etc. So that each part could perform its functions with minimum cost and conflict. The paramount object of modern city planning seems to be to ensure maximum comforts for the residents of the city by providing maximum facilities referred to hereinabove. It must, therefore, follow that a public functionary entrusted with the work to achieve the above objective cannot act in a manner, which may defeat the above objective. Deviation from the planned scheme will naturally result in discomfort and inconvenience to others. Respondent No3 in the above-quoted paras. 15 to 17 of the memo. Of petition has rightly highlighted that the Society in which the plot is situated was planned on the assumption that a 273 sq. Yards would have normal residential units and not flats.
21. It may be mentioned that framing of a housing scheme does not mean simpliciter, levelling of land and carving out of plots, but it also involves working out approximate requirements of water, electricity, gas, sewerage lines, streets and roads etc. If a housing scheme is framed on the assumption that it will have residential units 1 + 1. But factually the allottees of the plots are allowed to raise multi-storeyed buildings having flats, the above public utility services will fall short of requirements, with the result that everyone living in the aforesaid scheme will suffer. This is what has happened in Karachi. Without any planning and without expanding the provisions of the above items of public utility services, the people were allowed to erect multi-storeyed buildings having shops and flats. In consequence thereof everyone living in Karachi is suffering. There is scarcity of water, some people even do not get drinking water. The above other items of the public utility services are short of demand. Roads and streets are normally flooded with filthy and stinking water on account of choking and overflowing of sewerage lines. To reduce the miseries of most of the Karachiites, it is imperative on the public functionaries like the Authority to ensure the adherence to the Regulations. However, it may be clarified that it may not be understood that once a scheme is framed, no alterations can be made. Alterations in a scheme can be made for the good of the people at large, but not for the benefit of an individual for favouring him at the cost of other people.
It may be stated that under Article 30 of the Order, the K.D.A. Has been empowered to execute the following types of schemes:--
(a) a general improvement scheme;
(b) a re-building scheme;
(c) a re-housing scheme;
(d) a street scheme;
(e) a deferred street scheme;
(f) . a development scheme;
(g) a housing accommodation scheme;
(h) a town-expansion scheme;
(i) a zonal plans scheme;
(j) a transport scheme;
(k) a drainage and sewage disposal scheme;
(1) a scheme for the re-distribution of sites; and
(m) health and welfare scheme; ' The above scheme include re-framing of schemes.
22. As regards the third submission of Mr. Suleman Kassam, it may be stated that there is nothing on record to indicate the size of the plot in dispute. However, respondent No,3 in his written submission, has stated the size of the plot as 273 sq. Yards. It is the case of appellant Abdul Razak that the size of the plot is less than 300 sq. Yards. The High Court in the impugned judgment has referred to plots ranging from 301 to 500 sq. Yards. The mentioning of the above dimensions does not affect the result of the present case as the zoning regulations for residential plots relating to Cooperative Housing Societies Union Limited in which the plot in dispute is situated provides as under for the plots ranging from 150 to 300 sq. Yards:- "Houses on plots ranging from 150 to 300 sq. Yards--
(a) one-third of the area should be left open;
(b) ground floor and one storey will be allowed;
(c) building will be allowed to abut on street line;
(d) clear ceiling of living rooms should be 12 ft. On ground floor and 10 ft. On 1st floor;
(e) no roofs other than RCC will be allowed;
(f) shops etc. Will not be allowed."
23. The High Court in the above direction has directed the Authority to ensure that the construction put up by the appellant Abdul Razak should conform to the Regulations. The Regulations would be thus which are applicable to the plots measuring from 150 to 300 sq. Yards.
24. Mr. Azhar All Siddiqui, learned counsel for the appellant Abdul Razak's submission is that in the petition respondents Nos.2 and 3 had not specified the violation of any specific regulation, it will suffice to observe that it was not necessary to specify the breaches of specific Regulations. It was sufficient to state that the appellant was carrying out construction in violation of the approved building plan. The above respondents besides making above averment has highlighted the nature of breaches in the memo. Of writ petition.
' The other contention of Mr. Azhar Ali Siddiqui that as the appellant Abdul Razak had completed construction as per regularised plan, the High Court was not justified to grant the above relief, it may be pointed out that respondents Nos.2 and 3 had approached the Authority when the excavation work was in progress and no structure was constructed by then. The appellant Abdul Razak after obtaining a status quo order from the Civil Court expedited the work in order to create a fait accompli and to render the above respondents' efforts fruitless. When the above writ petition was filed the work was still in progress and even the structure of third floor was not constructed.
The appellant Abdul Razak made the above statement before the High Court that he was not going to construct flats. The above statement was treated as an undertaking, the breach of which was to be treated as a breach of injunction. In the above factual background, it does not lie in the mouth of the appellant Abdul Razak to urge that the High Court was not justified in granting the above relief.
25. The upshot of the above discussion is that with the above clarification/modification, the above appeals are dismissed. However, there will be no order as to costs.
…and 57 more citing cases