SAJJAD ALI SHAH, C.J.---This appeal with leave of the Court is directed against the impugned judgment dated 21st January, 1993 of a Division Bench of the High Court of Sindh, whereby the Constitution petition filed by five private respondents herein is allowed, declaring construction of Ground plus Nine Floors on the plot described below as violative of the Karachi Building and Town Planning Regulations and further directing the Karachi Building Control Authority to demolish such construction which, if satisfied, has been raised in violation of the said Regulations.
2. Briefly stated the relevant facts in the background are that the appellants before us, namely, Multiline Associates, are builders and would be referred to hereinafter as such, applied through their attorney Haji Masood for approval of construction of Ground plus Ten-Storey Apartments on Plot No,18, FT-3, Frere Town, Karachi to the Karachi Development Authority,. Said plot measuring 3830 sq. Yards is a KMC tenure residential category plot located at the junction of Gizri Road and Lily Road. The request was for plot ratio of 1:4 whereas the Building and Town Planning Regulations prescribe plot ratio of 1:2 for residential category plot in Frere Town area. However, the Director General KDA stated in his note dated 18th September, 1989 (page 104 of Paper Book 1) that the policy for the approval of high-rise buildings was under consideration of the Government of Sindh and that further action on that proposal could be taken when the Government declared the policy.
The proposal was submitted for perusal and further orders. The Additional Chief Secretary (LG) appended his note stating that he was totally against converting residential plots for commercial purposes but since policy of allowing construction of high-rise buildings and commercialisation had been approved by the Chief Minister, this case could be decided in the light of the Wig. The Minister recommended that since so many high-rise buildings were already in existence in that area, plot ratio of 1:4 may be allowed and the building plan may be approved. Note of the Additional Chief Secretary is signed on 26th September, 1989 (page 104 of PB 1) and on the next page there is another note showing challan for 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th plus 10th floor at the rate of Rs,65 prepared vide Challan No,27/33541 dated 28th September, 1989 of the amount of Rs, 22,40,550.
3. On 2nd October, 1989 architectural approval of building plan (Ground plus Ten Floors) was obtained (page 147 of PB 1) and on the same date building plan was approved subject to conditions including approval of KMC being the lessor. Vide letter dated 10th October, 1989, the Director Land, KMC rejected the building plan on the grounds; firstly that the area and measurement of the plot did not tally with the office record; secondly that only for residential purposes Ground plus two upper storeys could be constructed; and thirdly that the structure of services of water, drainage, electric and Sui gas shall be disturbed (page 107 PB 1). On 15th October, 1989, the Karachi Building Control Authority issued No-Objection Certificate for advertisement of sale of the flats at "Spring Field Apartments" on Plot No, 18, FT-3, Frere Town Quarters, Karachi and on 23rd November, 1989 advertisements appeared in various newspapers of Karachi for construction of whole structure of Ground plus Ten floors. (Newspapers clippings are at pages 211 to 217 of PB 1). The learned counsel for the appellants stated that the proposed construction as such was advertised on the television also, hence various parties applied and obtained allotments and paid instalments. Thereafter construction started and two years time for handing over the possession was assured.
4. On 26th February, 1990, the Karachi Building Control Authority (to be referred hereafter as KBCA) issued notice questioning the construction on area outside the authorized open space in contravention of the approved building plan. On 5th March, 1990 revised plan was submitted leaving aside seven feet as open space on three sides and five feet in the rear as against requirement of ten feet to be left as open space. On 28th March, 1990 KBCA issued notice, of which explanation was submitted but was found unsatisfactory. On 2nd May, 1990, another notice was issued by KBCA for stopping the construction.
5. On 29th May, 1990, Sindh Buildings Control Ordinance, 1979 was amended by Ordinance II of 1990 inserting subsection (5) in section 6 providing that before the completion of building, Government may, if it is satisfied that the construction of any type of the building or buildings in any area is not in the public interest or is otherwise inexpedient, without notice suspend or cancel the no-objection certificate already issued. Subsection (6) of section 6 further provided that if any order was passed under subsection (5), the matter shall be re-processed by the Authority in accordance with such directions as may be given by the Government. With efflux of time this Ordinance expired and was replaced by Ordinance V of 1990, which was promulgated on 4th September, 1990. Ordinance V of 1990 was subsequently converted into Act VII of 1990 on 23rd December, 1990. On 14th August, 1990 Order was promulgated by the Government of Sindh cancelling no-objection certificates issued between Ist December, 1988 to 5th August, 1990 for construction of high-rise buildings in violation of the provisions of the Sindh Buildings Control Ordinance, 1979 and the Building and Town Planning Regulations. This was followed by a public notice, which was published in the newspapers issued by the KBCA, cancelling no-objection certificates and approval of building plans of about fifty-two plots, list of which was also published but did not include the name of the builders, hence they proceeded with construction.
6. On 5th November, 1990, builders filed Suit No, 1187 of 1990 for declaration and permanent injunction against the KBCA to prevent it from interfering with construction work. It was contended, inter alia, by the builders as plaintiffs in the suit that they had submitted revised building plan on 5th March, 1990, which was to be approved or refused within sixty days and that since there was no response from the KBCA, their revised building plan stood impliedly approved on 5th May, 1990 as contemplated under the law. Hence, they were entitled to continue with the construction work, which was interfered with by demolition notices issued by the KBCA on 26th February, 1990 and 28th March, 1990, which were impugned. It is stated that in the said suit filed in the Court of VIIth Senior Civil Judge, Karachi South, interim stay was granted against the KBCA and that stay order remained operative as the same was not vacated or modified, copy of the plaint is at page 218 of PB 1). On 20th January, 1991, respondent No,1 herein (Ardeshir Cowasjee) filed Constitution Petition No, D-76 of 1991 in the High Court of Sindh at Karachi against the builders, KBCA, and the Government of Sindh praying for stopping of unauthorized construction in excess of plot ratio over compulsory open space and beyond the second storey. Alongwith the Constitution petition there was filed a miscellaneous application for interim stay, on which order was passed on 23rd January, 1991 for maintenance of status quo. On 27th February, 1991 Mr. Ismail Merchant, counsel for the builders in the Constitution petition, stated before the High Court that the building had been raised up to 9th floor and the work was to be taken in hand for the 10th floor according to the plan, upon which he relied, but the builders were restrained by the order of the Court from raising any further construct ion and from transferring, selling in any manner or parting with possession of any portion of the property.
7. During the pendency of the Constitution petition before the High Court, the builders submitted an application to the Chief Minister of Sindh on 8th May, 1991 for regularization of the approved building plan stating therein that they had launched the residential project and invested therein huge amounts of money and further described six plots in respect of which no objection certificates had been restored by the Government of Sindh. On this application, the Chief Minister of Sindh approved the regularization of the building plan on 21st August, 1991 and in consequence of which they paid composition fees of Rs,10,26,365 vide Challan No, 41 dated 27th October, 1991 (Page 176 PB 1).
8. Abovementioned order of the Chief Minister was impugned and for that reason request was made for amendment of memorandum of the Constitution petition in the High Court on 14th March, 1992, which was allowed and by consent of the counsel appearing for the parties there the learned Chief Justice gave a fixed date for final hearing and in consequence whereof the arguments were heard and judgment was reserved on 2nd September, 1992 and later on it was re-heard and allowed vide the impugned judgment.
9. There is one other aspect which also requires consideration. Messrs A. Razak Adamjee and Abdul Hamid Adamjee filed Suit No, 570 of 1988 against Messrs Datari Construction Company and Karachi Building Control Authority for declaration and injunction wherein the prayer was not to allow commercialisation of the plot in Clifton area as it would create a public nuisance and permanent injunction for restraining defendant No, 1 in the suit from erecting a multistoreyed building was sought. Mr. Naeemur Rehman appeared for the plaintiffs in the suit which was decreed with direction that defendant No,1 shall not construct beyond the hollow plinth plus five storeys. Permanent injunction was also granted restraining defendant No,1 from erecting multistoreyed building which would cause public nuisance. Against the decree in the suit, High Court Appeal No,55 of 1991 was filed; which was allowed and impugned .Portion from the judgment and decree was set aside as being contrary to the evidence on the record and it was held that as the Karachi Building and Town Planning Regulations were to be published in the Gazette as contemplated under section 16 of the Karachi Development Authority Order 5 of 1957 and that as it was not done, no reliance could be placed on them as they could not be considered to have come into effect. Mr. Naeemur Relunan appeared as counsel in HCA 55/91; which was allowed vide judgment dated 31st December, 1992. In Constitution Petition No,D-76/91, judgment was announced on 21st January. 1993 and notice informing about announcement of the judgment was issued by the office of the High Court on 18th January, 1993 and was received on behalf of Mr. Sharifuddin Pirzada, who appeared for the builders in the Constitution petition in the High Court. It was submitted before us on behalf of the builders that in such circumstances it was incumbent upon the counsel appearing for respondents before us to have intimated the Division Bench of the High Court, seized of Constitution Petition No,D-76/91, that there was already finding by one other Division Bench of the same High Court to the effect that the Regulations were not in force and that if a contrary view was to be taken on that point, then the matter should have been referred to the Chief Justice before announcement of the judgment for constitution of a larger Bench.
10. Petition for leave to appeal was filed in this Court against the judgment dated 21st January, 1993, whereby the Constitution petition has been allowed, and leave has been granted to consider, inter alia, the following questions: "(1) Whether the Division Bench was bound by the earlier judgment of its own Court delivered in H.C.A. No, 55 of 1991?
(2) Whether the respondents had the locus standi to file the writ petition?
(3) Whether there were any building regulations in force in the area and, if so, whether the building plans of the appellants conformed to these Regulations? And
(4) Whether the Chief Minister or respondent No,2 could permit deviation from the Regulation, if any, or compounding thereof?"
11. After grant of leave, an application under Order V, Rule 2 of the Supreme Court Rules was filed on 14th May, 1994 at Islamabad by Mr. Abdul Hafeez Pirzada; which was registered as CMP 56-K of 1994 and taken up for consideration at the time of hearing of the appeal. He was heard by us in connection with that application at the time of the hearing of the appeal. He submitted that he had filed that application on behalf of fourteen transferees of the flats, constructed in the disputed building, who had paid huge amounts of money and, therefore, had vested right in acquiring possession of those flats. Further that they should have been impleaded as necessary parties in the proceedings of the Constitution petition before the High Court, which was not done. He further submitted that his clients came to know about the proceedings in the Supreme Court, and, therefore, have prayed to be impleaded as necessary parties because they have paid money on the representations of the Government of Sindh and advertisements of the builders in the newspapers that their project of construction was strictly in accordance with the law, rules and regulations and no objection certificate had already been obtained from the concerned authority.
12. In support of the claim documents have been filed which are contained in the paper book (part 3) and those documents include list of allottees, provisional allotments, payment receipts, extract of property, forms of Sanad and deeds of conveyance. At page 3 of the paper book, Part-3, there is list of allottees which shows various amounts paid by such allottees on different dates. Provisional allotment orders have been issued by the builders in favour of such transferees which are placed on the record.. Mr. Abdul Hafeez Pirzada further contended that in view of such documentary material in respect of the claim it is a fit case for interference by the Supreme Court to allow the transferees to be impleaded as necessary parties on the basis of their right which has accrued to them as vested right and that this Court should overlook the procedural technicalities in order to do complete justice as contemplated under Article 187 (1) of the Constitution. In support of the proposition reliance has been placed by him on the case of Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678) in which it is held that legal formalities and technicalities of procedural law should not be allowed to defeat ends of justice unless such technicalities offer insurmountable hurdles. In that case section 3 of Jammu and Kashmir (Administration of Property) Ordinance (III of 1961) came up for consideration in conjunction with section 115 of Civil Procedure Code and it was held that although ordinarily, Courts had declined to exercise the revisional jurisdiction where an alternative remedy was available, yet this was not an inflexible rule to be rigidly followed and a departure could justifiably be made if required by the circumstances of the case.
13. Mr. Abdul Hafeez Pirzada also cited the case of Ch. Zahur Ilahi, MNA v. The State (PLD 1977 SC 273) in which "complete justice" as mentioned above in Article 187 of the Constitution has been examined in detail and it is held that "doing complete justice" is indeed a very comprehensive term and means doing real and substantial justice without being fettered by legal formalism, so that paramount interests of justice are not allowed to be sacrificed at the altar of mere technicalities.
Reliance was also placed on the case of Mst. Safyya and another v. Muhammad Rafique and 6 others (PLD 1993 SC 62) in which Articles 187 (1) and 185(3) of the Constitution were examined in conjunction with section 25 of the Contract Act and it has been held that this Court has power to issue such directions, orders or decrees as may be necessary to do complete justice in a lis pending before it.
14. When asked why transferees did not join proceedings in the High Court, Mr. Abdul Hafeez Pirzada stated that the proceedings were commenced in the High Court in the Constitution petition in the year 1991 and transferees should have been joined by the writ petitioners who had knowledge that flats were constructed as they claimed to be the immediate neighbours in the vicinity of the plot on which building in question was being constructed and letting out of the flats was advertised in the newspapers and television. When asked as to why the builders did not ask the Court to join the transferees as necessary parties, Mr. Abdul Hafeez Pirzada replied that if they had done so their business interest would have been affected adversely because the transferees would have insisted for cancellation of the allotments and refund of money.
15. Mr. Naeemur Rehman, learned counsel for the private respondents, vehemently opposed the prayer of the transferees of flats for their impleadment as necessary parties on two grounds. Firstly, that the Constitution petition was filed by his client as pro bono publico, and secondly that the documents produced in support of the claim of transferees did not show that they are the genuine transferees because all such documents are issued by the builders, who are interested party, hence there appeared to be collusion between the two. He also submitted that the transferees had not given any satisfactory explanation for not joining the proceedings in the High Court and no such documents have been produced by them to show that they are the genuine transferees as they claim to be.
16. After considering the contentions raised on behalf of both the parties, we feel inclined to agree with Mr. Abdul Hafeez Pirzada that the transferees of the flats have paid huge amounts in instalments for purchase of the flats which fact is fully documented as receipts and other documents have been produced. We do not see any plausible reason for builders to fabricate such documents to substantiate claim of transferees because evenotherwise their case stands on the basis of their own contention that their project of construction has not violated any rules or regulations. We are also satisfied that satisfactory documentary evidence has been produced to show that the transferees have acted on the representations made by the Government of Sindh and the builders to the effect that construction was according to law and rules and that no- objection certificate had been obtained. We, therefore, grant the prayer in CMP 56-K of 1994, which is hereby allowed.
17. This Court has granted leave, inter alia, on four grounds which are mentioned above. First ground is whether the Division Bench of the High Court of Sindh which delivered the impugned judgment in Constitution Petition No,D-76/91 was bound by earlier judgment of equal Bench of the same Court, which has held specifically that the Karachi Building and Town Planning Regulations are not in force. There is no dispute about the fact that in the impugned judgment a contrary view has been taken and if it was found to be necessary to do so, then proper course would have been request to be made to the learned Chief Justice for constitution of a larger Bench instead of giving conflicting finding; which is bound to create confusion. Civil Appeal 556/93 is pending in this Court, record of which shows that the judgment impugned therein was delivered by the Division Bench of the Sindh High Court on 31st December, 1992 and Mr. Naeemur Rehman appeared as one of the counsel there, who was also counsel in Constitution Petition No,D-76/91 in which judgment was announced on 21st January, 1993. Our attention has been drawn to page 300 of PB 1 at which can be found photostat copy of the notice issued in CP D-76 of 1991 intimating 21st January, 1993 as the date for announcement of the judgment and such notice was issued on 18th January, 1993 addressed to Mr. Sharifuddin Pirzada. Mr. Naeemur Rehman also did not seriously contest this point to the effect that he had no knowledge of judgment in HCA 55/91, which was announced on 31st December, 1992. Nor did he say whether it was his duty or not to bring this fact to the notice of the Division Bench which announced the judgment later in point of time on 21st January, 1993. Since there is no serious contest between the learned counsel on this point as far as factual aspect is concerned, we should not detain ourselves any longer on the factual side and go straight to the legal aspect and case-law for the reason that dates of pronouncement of the judgments mentioned above are not in dispute as per record. There is also no dispute between the counsel of the parties before us on the point that validity of the Regulations mentioned above was a live question in both the proceedings.
18. In such circumstances, legal position which emerges is that the second Division Bench of the High Court should not have given finding contrary to the findings of the Ist Division Bench of the same Court on the same point and should have adopted the correct method by making a request for constitution of a larger Bench, if a contrary view had to be taken. In support reference can be made to the cases of the Province of East Pakistan v. Dr. Azizul Islam (PLD 1963 SC 296) and Sindheswa r Ganguly v. State of West Bengal (PLD 1958 SC (Ind.) 337), which is a case of Indian jurisdiction. We, therefore, hold that the earlier judgment of equal Bench in the High Court on the same point is binding upon the second Bench and if a contrary view had to be taken, then request for constitution of a larger Bench should have been made.
19. Second question for consideration in the leave granting order is whether the respondents had the locus standi to file the writ petition. It is submitted before us by the learned counsel for the appellants that the private respondents had no locus standi to file the writ petition in the High Court. Map of the plan of Frere Town and Bath Island quarters prepared by the KMC, was placed before us for perusal in support of the contention. Addresses of the writ petitioners are mentioned in the memorandum of the writ petition, filed in the High Court, and memorandum of the petition filed in this Court. Ist writ petitioner, Ardeshir Cowasjee, is shown as residing at 10-Mary Road Frere Town, Karachi. Second writ petitioner,. Ardeshir Dalal., is shown as residing at 4-A, Mary Road, Frere Town, Karachi. Third writ petitioner, Ahmed Mahmud, is shown as residing at 2-Mcneil Road, Frere Town, Karachi. Fourth writ petitioner, Habib, is shown as residing at 4-Khaliquzzaman Road, Frere Town, Karachi. Fifth writ petitioner, Ronnine Byramji, is shown as residing at 11-B, Mcneil Road, Frere Town, Karachi. Ardeshir Cowasjee has acted as attorney of writ petitioners two to five. In the map, mentioned above, plot upon which disputed construction is being made is shown as Plot No, 18 in F.T. 3 along side Gizri Road. Other sectors, such as, F.T.1, F.T.2 and F.T.4 are also shown in the map. In- between F.T3 and F.T.4, there is Clifton Road, and writ petitioner No,1, Ardeshir Cowasjee, resides at- 10-Mary Road; which is at the other end of F.T.4, sufficienty away from the disputed building in F.T3.
Likewise, writ petitioner No,2 also resides on Mary Road in the neighbourhood of. Writ petitioner No,1; sufficiently away from the disputed building. Writ petitioner No,3 resides in F.T.2 on Mcneil Road across Gizri Road, which is also far away from the disputed building. Writ petitioner No,4 resides at 4- Khaliquzzaman Road, and the name of Khaliquzzaman Road is not mentioned in the map, but from location it appears that this address is at a short distance from the disputed building across Gizri Road. Writ Petitioner No,5 resides on Mcneil Road, which is also away from the disputed building. It can be said that writ petitioner No,3 is a close neighbour but not other writ petitioners, who are residing at a sufficient distance. This is a disputed question of fact. Question arises that if they were immediate neighbours and live in close proximity of the disputed building, then their rights of easements would have been affected, and in such circumstances, they could have filed suits for enforcement of their rights of easement. It is submitted before us that in fact writ petitioners 1, 2, 4 and other neighbours filed Suit No,411 of 1990 for declaration and injunction against the construction of high-rise building of eleven floors on the grounds, inter alia, that the plaintiffs in the suit had purchased plots and constructed residences on the assumption that the area was exclusively residential in nature where high-rise buildings and flats would not be allowed to be constructed affecting their easements, rights of privacy and comfort. This suit was withdrawn on 31st March, 1991 on the ground that defendants Nos. 2 and 3 in the suit had cancelled the approved building plan of construction of high-rise building in favour of defendant No,1. In the result the suit was dismissed as withdrawn. It was stated at the Bar that later construction was resumed and the building was completed and no further steps were taken by the plaintiffs in the suit to object afresh when construction was resumed presumably after grant of permission for construction again.
20. In the High Court, in Constitution Petition D-76 of 1991; from which the present appeal has arisen, counter-affidavit was filed on behalf of the builders wherein stand was taken that the writ petitioners resided away from the disputed building and had suppressed the fact that several high-raise buildings in the area were completed without there being any objection from them.
Further, particulars of such high-rise buildings in the same area are mentioned at pages 119 and 120 in PB 1 as under: "(a)Prince Complex Plot No, 20/F.T.2G + 9 floors (b)Anthony ApartmentsPlot No, 35/F.T.2G + 9 floors
(c) Rimpa Construction Plot No, 16/F.T.2 G + 9 floors (d)Al-Mustafa Homes Plot No, 25/F.T.2G +8 floors
(e) Rimpa Sunbeam Plot No, 22/F.T. 2G + 7 floors
(f) Kandawala Building Plot No, 24/F.T.2G +6 floors (g)New Kauser ApartmentsPlot No, 20/F.T.3G + 5 floors (h)Gulnar Apartments Plot No, 11/F.T.3 G + 6 floors
(i) Rose Garden Plot No, 19/F.T. 2G + 5 floors
(j) Ideal House Plot No, 19/F.T. 3G + 6 floors
(k) Midway Tower Plot No, 27/F.T. 3G + 6 floors (1)P.S.O. House Plot No, 21/F.T. 3G + 8 floors (m)Blessed House Plot No,36/F.T.2 G + 6 floors"
Photostat copies of the photographs of abovementioned high-rise buildings are placed on the record marked as B-1 to B-13 at pages 131 to 137 of PB1. It is stated in the said counter-affidavit that the writ petitioners in the instant case had been watching the construction of the building in question, comprising Ground plus Ten floors, for the past fifteen months before the filing of the writ petition, hence are to be deemed to have acquiesced in/waived their objections.
21. Against the counter-affidavit mentioned above, affidavit in rejoinder is filed: in which allegations are denied and disputed, and main thrust is upon the fact that the building in question was being constructed in violation of rules and regulations infringing upon the privacy of the persons residing in the adjoining buildings, causing shortage of civic amenities, and creating traffic congestions, chocking of sewerage lines leading to further shortage of gas, water, and electricity. It is mentioned in paragraph 9 of the affidavit in rejoinder that the Minister expressed his disapproval of high-rise construction, but was helpless in view of the Chief Minister's alleged policy and gave directions accordingly. It is noteworthy that in paragraph 5 of the counter-affidavit high-rise buildings in the same area have been mentioned; details of which have been reproduced above, but in the affidavit in rejoinder paragraph 5 is denied vaguely and no mention is made about the high-rise buildings constructed in the same area without there being any objection from the writ petitioners.
Paragraph 5 of the counter-affidavit is replied by paragraph 6 (a) of the affidavit-in-rejoinder at page 293 of original record in Constitution Petition No,D-76 of 1991 and is reproduced as under: "That para. 5 of the affidavit is denied. It is submitted that the cause of action vests in the petitioners in view of (i) disregard by the respondent No,1 of respondent No, 2's directions, (ii) the inability of respondent No,2 to enforce the same, and construction of the building contrary to Regulations of 1979. (Annexures D, E of the petition are respectfully referred, (iii) disapproval of the concerned Authority and Lessor (Annexures B and C of the petition). Further the Petitioners also being in the nature.Of de bono publico, they have the locus standi to file and maintain the petition."
22. It was submitted before us that in view of the material produced in the High Court in the writ petition; from which the present appeal has arisen, and in the circumstances when construction of the building in question was being carried on according to law, and no objection certificate, which was suspended for some time, was also restored, and there was no violation of any rules and regulations, the builders had complete protection of fundamental rights enshrined under Articles 4, 18 and 25 of the Constitution. Their building was not mentioned in the list of plots; in respect of which no objection certificates were cancelled as published in the newspapers, hence writ jurisdiction under Article 199 of the Constitution was not available to the writ petitioners. It was further submitted before us that even if it be assumed that the writ jurisdiction was available, none of the ingredients was present to attract the jurisdiction as none of the writ petitioners was an aggrieved person and had locus standi.
23. In the impugned judgment, in support of allowing the writ petition reliance is placed upon the case of Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1969 SC 223); in which it is held that for filing a Constitution petition in the High Court under writ jurisdiction the right of petitioner need not be right in strict juristic sense but would be enough if he shows that he had a personal interest in performance of legal duty which had not been performed in a manner required by law. In that case the Corporation was entrusted with the task of formulating town improvement scheme; in which a particular site was earmarked as market place and the petitioner purchased a piece of land opposite market place in .The hope of having a shop there. Subsequently, there was alteration in the scheme, and the petitioner could not succeed in his object. Sections 43 and 49 of Punjab Town Improvement Act (IV of 1922) were examined in detail in the light of fact whether at the time of alteration of the scheme right of hearing should have been given to the public on the basis of principle of natural justice. It was held that in the scheme of the Punjab Town Improvement Act republication was provided wherever it was found necessary and it would not be necessary for minor modifications in the scheme. In that case the Trust had made a little alteration and portion out of plot reserved for market was reallocated for construction of a mosque. It is very obvious that the plot in question was an amenity plot meant for the benefit of public at large and market was to he set up. Petitioner had purchased a piece of land opposite the market place. There was alteration to the extent that a mosque was to be constructed, hence petitioner claimed that he had personal interest in performance of legal duty as alteration could not be made without republication; in which he should have been heard. What is held in this case would not apply to the present case for the reason that in the instant case the area is residential and the flats to be constructed on the plot in dispute are also residential and use of the plot is not converted from residential into commercial.
24. In this case the conduct of the writ petitioners is such that they should not have been granted discretionary relief under writ jiu isdiction for the reason that they did not raise any objection for about fifteen months and allowed the building to be constructed up to ninth floor. There was no breach of their rights of easements and Suit No, 411 of 1990 was filed by them for breach of easements which was withdrawn and was not filed again when the building in that case was completed. There are so many high-rise buildings in the same area and in the neighbourhood of the plot where building in dispute is constructed. Writ petitioners cannot be allowed to pick and choose, and hold grievance against one particular builder when in the same neighbourhood several high-rise buildings of same height have been constructed without any objection from any quarter.
25. On the other hand Mr. Naeemur Rehman for private respondents emphatically argued before us that Karachi should not be allowed to sink further with high-rise buildings and particularly Clifton area; which previously used to be a calm and peaceful, away from hustle and bustle of the city. Further that haphazard construction of high-rise buildings in Clifton area in violation of rules and regulations has caused a great damage to the civic amenities and has deprived the residents of the area of their easements, rights of privacy, and comfort. He further submitted that it was not correct that in this case the writ petitioners had to show legal right in order to be entitled to file writ petition, but it was enough if they could show personal interest in performance of legal duty according to law. In support of the proposition, he cited case-law including the case of Mian Fazal Din v. Lahore Improvement Trust (supra). This judgment is already discussed above and is distinguishable for the reasons mentioned therefor.
26. He also cited the case of Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416). In the reported case, a direct Constitution petition was filed in this Court, challenging vires of the Political Parties Act, 1962 and in that context Articles 184 (3) and 199 of the Constitution were examined to define the scope of interference by the Supreme Court when question of public importance with regard to enforcement of fundamental rights was involved. It was held that for invoking writ jurisdiction under Article 199 of the Constitution, it was necessary for the party approaching the Court to be the aggrieved party, but for invoking jurisdiction of the Supreme Court under Article 184 (3), requirement of aggrieved party was not attracted to as rule of locus standi was dispensed with and procedure in public interest litigation could be made use of if it was brought by a person acting bona fide.
27. Another judgment cited by Mr. Naeemur Rehman is in the case of S.P. Gupta and others v.
President of India and others (AIR 1982 SC 149), wherein it is held that any member of public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from provision of the Constitution or the law and seek enforcement of such public duty and observance of such Constitutional or legal provision. In the reported case, some advocates filed writ petitions by way of public interest litigation on the subject of independence of judiciary, challenging firstly transfer of the Chief Justice of one High Court to the other, secondly non-extension of term of service of Additional Judge of the High Court, and thirdly circular of Union Law Minister. In that connection locus standi of the petitioners was examined, and it was held that since litigation affected judiciary, lawyers had interest of locus standi to file the petitions. It was also noticed that affected Judges had also joined the proceedings as petitioners.
28. Another case from Indian jurisdiction cited in support of the writ petitioners is judgment in Bangalore Medical Trust v. S. Muddappa and others In the reported case, a public park was converted into private nursing home and the petition filed by inhabitants of the locality was held to be maintainable on the ground that they had locus standi as it was public interest litigation. It was held that private nursing home was not amenity and could not be considered improvement over necessity like public park and such conversion was illegal. Relevant portion in paragraph thirty-six at page 1915 of the reported case is reproduced as under: The restricted meaning of aggrieved person and narrow outlook of specific injury has yielded in favour of broad and wide construction in wake of public interest litigation. Even in private challenge to executive or administrative action having extensive fall out the dividing line between personal injury or loss and injury of a public nature is fast vanishing. Law has veered round from genuine grievance against order affecting prejudicially to sufficient interest in the matter. The rise in exercise of power by the executive and comparative decline in proper and effective administrative guidance is forcing citizens to espouse challenges with public interest flavour. It is too late in the day, therefore, to claim that petition filed by inhabitants of a locality whose park was converted into a nursing home had no cause to invoke equity jurisdiction of the High Court. In fact public spirited citizens having faith in rule of law are rendering great social and legal services by espousing cause of public nature."
29. For the facts and reasons, and case-law on the subject of locus standi as mentioned above, we find that even though some writ petitioners are shown to be residing at distances far away from the building in dispute and one writ petitioner is shown to be residing in close proximity of the building in dispute and since the area is same, requirement of locus standi as contemplated under Article 199 of the Constitution is to have extended scope as this case has characteristics of public interest litigation and the writ petitioners are pro bono publico. For such reasons, we hold that they could file the writ petition and they had locus standi, but they have acted belatedly as they filed the writ petition after fifteen months and also did not raise any objections with regard to so many other high-rise buildings of same height in the same area, and particularly when the construction is not in violation of rules and regulation, discretionary relief in the writ jurisdiction should not have been granted.
30. The third question for consideration for which leave was granted is whether there were any building regulations in force in the area and, if so, whether the building plans of the appellants conformed to those regulations. In this context it would not be out of place to mention that initially the Sindh Buildings Control Ordinance was promulgated in 1979; preamble whereof provides to regulate the planning, quality of construction and buildings control, prices charged and publicity made for disposal of buildings and plots by builders and societies and demolition of dangerous and dilapidated buildings in the Province of Sindh. Section 4 of this Ordinance provides for setting up the Authority for such area as may be specified in notification. Section 6 provides for approval of plan in the prescribed manner and for granting of no-objection certificate for construction of payment of such fee as may be prescribed. This section was amended by Ordinance II of 1990 by insertion of subsection (5) empowering the Government to suspend or cancel no-objection certificate before the completion of building if it is satisfied that the construction is not in the public interest or is otherwise inexpedient. Section 19 of this Ordinance provides for penalty for contravention of any provision of the Ordinance with simple imprisonment for a term not exceeding two years or with fine or with both, and empowers the Authority to compound any offence under this Ordinance on such terms and conditions as may be prescribed. Section 21 empowers the Government to make rules. Said Ordinance was amended by Sindh Ordinance III of 1982 on 6th March, 1982, and section 21-A was inserted, empowering the Authority to frame Regulations not inconsistent with the provisions of this Ordinance and the rules made thereunder.
Subsection (3) of section 21-A further envisages that the Karachi Building and Town Planning Regulations, 1979 in the case of the Authority of Karachi and the bye-laws of the council concerned in other cases shall be deemed to be the regulations until the regulations are framed under this section.
31. It is very clear from what is stated in the above paragraph that when the Sindh Buildings Control Ordinance was promulgated in 1979; under which only the Government was empowered to make rules, there was no further provision in it for making any regulations by the Authority, which was done subsequently by insertion of section 21-A vide Amending Ordinance III of 1982. In the meantime the Government of Sindh constituted a committee of experts in the year 1977 under the convenership of the Director, Master Planning and Environmental Control Department of KDA to frame uniform building bye-laws. The committee undertook the exercise of going through all the existing bye-laws/regulations of all the local Agencies working in Karachi in order to frame "Unified Building and Town Planning Regulations" for the whole Karachi Division which could be followed by all the local Agencies. Proposed regulations were made in two parts. Part 1 covered building regulations, and Part II covered town planning regulations. During the preparation of these regulations, intensive research work in the field of building and town planning was undertaken.
Different models of various countries were consulted and a good number of local experts in the respective fields were interviewed. Bibliography contained in these Regulations indicates that final draft of Karachi Development Regulations, 1976, and Karachi Town Planning (Interim) Regulations, 1963 were considered alongwith several other works and treatises, such as, Builders Guide, A Model Land Development Code from the American Law Institute, Town and Country Planning Act, 1971 of U.K., The Development Control Rules Greater Bombay (1967) India, and similar works from other countries like Singapore and U.S.A.
32. The exercise undertaken by the Committee mentioned above concluded its proceedings and prepared the Regulations in two parts, which were ready in the month of March, 1979. To be very exact, the Draft Regulations were ready in the last meeting of the sub-committee, which was held on 22nd March, 1979, and the Sindh Building Control Ordinance was promulgated for the first time on 3rd March, 1979, and, therefore, it is mentioned in very unequivocal terms in the foreword of these Regulations; which later on came to be known as Karachi Building and Town Planning Regulations, that when the draft was prepared, the Sindh Buildings Control Ordinance, 1979 was also promulgated by the Governor and as such the Draft Regulations were to be made in conformity with the Sindh Buildings Control Ordinance, 1979. As pointed out earlier, in the year 1979, after promulgation of the Sindh Buildings Control Ordinance, there was no provision in the said law for making regulations, and the needful was done by way of amendment which took place in the year 1982 by Sindh Buildings Control (Amendment) Ordinance, 1982 promulgated on 6th March, 1982; whereby section 21-A was inserted making provision of empowering the Authority to frame regulations not inconsistent with the provisions of this Ordinance and rules framed thereunder for carrying out the purposes of this Ordinance.
33. Section 21-A(3) clarifies the position that Karachi Building and Town Planning Regulations, 1979 shall be deemed to be the regulations under this Ordinance until regulations are framed. This was done with full knowledge and awareness of the Karachi Building and Town Planning Regulations; which were already in existence. Only three years were taken from 1979 to 1982, and it is presumed that during that time these Regulations were considered and examined in detail and when found that they were not inconsistent with the letter and spirit of Sindh Buildings Control Ordinance, 1979.
Only then these Regulations were adopted to be acted upon in the manner prescribed specifically in section 21-A(3) by the amending Ordinance itself. For that reason, in the Karachi Building and Town Planning Regulations footnote to foreword clearly and specifically states in unequivocal terms that "These Regulations have been given legal effect vide section 21-A(3) of the Sindh Buildings Control Ordinance (Amendment), 1982.
34. In section 21-A(3) of the Sindh Buildings Control Ordinance, 1979, as stated above, the words "to be deemed to be Regulations" have been used in the circumstances mentioned above, which clearly show that Karachi Building and Town Planning Regulations, 1979 were in existence and already available, and were to be acted upon until fresh regulations were framed as provided under section 21-A(1) of the said Ordinance. Therefore, words "to be deemed" have not been used to connote something which is imaginary and non-existent but refers to specific regulations which were in existence and comprehensive. Even if they are not published in the Gazette under this Ordinance or under any other previous law, then also as draft regulations they have complete statutory sanction conferred upon them by section 21-A(3) by naming them specifically. Hence, they can be construed and acted upon as regulations for the purpose of this Ordinance until fresh regulations are made provided these Regulations as such are not inconsistent with the provisions of this Ordinance and rules framed thereunder. In peculiar circumstances of this case and reasons stated above, we are of the view that in this case deeming clause cannot be equated with legal fiction supporting imagination of state of affairs which did not exist.
35. Cardinal principle of interpretation of statutes is that a law should be interpreted in such a manner that it should be saved rather than destroyed. The Courts should lean in favour of upholding constitutionality of legislation and it is, therefore, incumbent upon the Courts to be extremely reluctant to strike down laws as unconstitutional. This power should be exercised only when absolutely necessary, for injudicious exercise of this power might result in grave and serious consequences. In support of the proposition reference can be made to the case of Province of East Pakistan v. Sirajul Huq Patwari (PLD 1966 SC 854). The same principle of interpretation shall apply to subordinate legislation including Regulations as in this case.
36. It was argued on behalf of the builders that the building in dispute has been constructed on the plot which was earmarked for residential purposes only and that flats are also included in the residential purposes. Reference is made to the Karachi Building and Town Planning Regulations, Part-II, Schedule G at page 58, in which under the caption of Land Use Classification urban uses are mentioned showing in urban area residentiary or residential uses which include bungalows, town houses, and flats. At page 63, plot sizes are specified and the requirement is that for high-raise flats the size should be not less than 3200 sq. Metres. Another requirement under the Regulations is that if the building has more than four floors, then it is necessary to install a lift. At page 92 of Part II of the Regulations, zone-wise plot ratio standards are specified. Zone 'Bincludes Frere Town quarters (F.T.) Plot ratio under this zone for residential or industrial uses is as under: ( i ) Residential or Industrial uses 1:2.00 ( i i )Residential-cum- commercial uses1:2.50 ( i i i )Commercial uses 1:3.00 It is stated that for residential or industrial uses ratio as specified means Ground plus Four or Ground plus Five in KDA area. For residentialcum-commercial uses ratio means Ground plus Six including shops on the ground floor.
37. In Part-II of the Regulations in Schedule D at page 50 is specified change of land use of amenity and utility plots, Article 4(a) thereof contemplates change of land use of residential plots with approval of MP&CE (Authority under Sindh Buildings Control Ordinance, 1979). In that context, applicant is to apply to the concerned authority for the change of land use with full justification and concerned authority shall publish notice for change of land use of the plot and after hearing the public, if any, needful can be done after payment of prescribed scrutiny fees and other charges and thereafter no-objection certificate can be issued. There is no dispute about the fact that in this case plot in question; upon which construction is raised, is KMC's plot on lease for which construction in the normal course is allowed for Ground plus Two floors all over Karachi. In 1977 departure was made and permission was granted from time to time for construction of high-rise buildings.
38. In the case of Muhammad Munir v. Ahmed Ally Memon and 2 others (PLD 1982 Karachi 425), learned Single Judge has traced the relevant history of statutes and circulars governing town planning and construction of buildings in Karachi in a suit for declaration and injunction relating to a plot in dispute between the parties, situated in Garden East, Karachi. The suit was filed in the year 1979 on the ground that the Collector of Karachi had issued a circular in the year 1938, which required that no building other than bungalow, or a cottage could be constructed on a building plot but flats of a superior type may be permitted by the collector at his discretion provided that the number of tenements in any one building plot shall not exceed four with other conditions also prescribed. It was also contended that the circular was in the nature of restrictive covenants running with the land and was binding on all the lessees. In that case, the owner of the plot proposed to construct Ground plus Four floors. It has been held that it was clear from the evidence that since 1964 permissions had been granted for constructing multi-storeyed buildings in the Garden East area and since then plans for eleven-multi-storey buildings had been approved. No attempt was made to establish that such permissions were granted after obtaining no-objection certificates from neighbouring land owners. It was held that the Circular of 1938 did not seem to have been in full force. It was also held that by notification Provincial Government had authorized the Karachi Municipal Corporation to levy and realize fee at the rate of Rs,15 per square yard of total area of the plot per floor on construction of additional floors beyond original permissible limits. This clearly shows that multi-storeyed buildings are allowed to be constructed in any area on the payment of required fee subject always to the Building Rules and Regulations. It was further held that after payment of charges to K.M.C., restriction, if any, imposed on height or number of storeys deemed to have been revoked.
39. The same view has been taken in the case of Naseer Ahmed v. Hafiz Muhammad Ahmed and 17 others (1984 CLC 340), in which the Division Bench has held that breach of restrictive covenants in respect of leases of urban lands could be resisted by lessor alone and not by other lessees unless there was tangible evidence that their rights as lessee will be infringed.
40. It is submitted on behalf of the builders in this case that Karachi Municipal Corporation has given approval on 7th May, 1992 during pendency of the Constitution petition in the High Court as is mentioned in the impugned judgment, and that the builders have also obtained no-objection certificate. Since the disputed plot is situated in the Municipal area, Sindh People's Local Council
(Land) Rules, 1975, promulgated under section 90 of the Sindh People's Local Council Ordinance, 1972, shall apply and as rule 23 thereof envisages that Council may allow construction of additional storeys on the plot on such terms and conditions and payment of such charges as may be fixed by the Council; which in the instant case is KMC, we are of the view that in the circumstances mentioned above no contravention has taken place of the Karachi Building and Town Planning Regulations and the builders are fully protected by the said Regulations and rule 23 of the Sindh People's Local Council (Land) Rules, 1975 as stated above. Act of regularization by the Chief Minister, which is impugned in the writ petition and in this case, is fully covered by section 6 of the Sindh Buildings Control Ordinance, 1979, which was amended by Ordinance II of 1990 inserting subsections (5) and (6) empowering the Government to withdraw or suspend no-objection certificate and also reprocess such order in accordance with directions as may be given by the Government. This amendment as stated above was made in the Ordinance on 22nd May, 1990, which is later in point of time than the earlier amendment made inserting section 21-A in the said Ordinance vide Sindh Ordinance III of 1982, which was promulgated on 6th March, 1982 empowering the Authority to frame the regulations.
41. Regulations are made by the Authority, which are supposed to be not inconsistent with the provisions of the Ordinance and rules framed thereunder. If there is inconsistency between any provision of the Ordinance and the Regulations, to that extent, Regulations, being inferior and subordinate legislation, will yield to the provision of the Ordinance and the rules framed thereunder.
In the instant case, amendment brought about in section 6 of the said Ordinance, empowering the Government to suspend or cancel no objection certificate and then reprocess it, shall hold the field for two reasons: firstly, that provision of Ordinance is substantive law, which has preference over the Regulations which are procedural in nature and made by the Authority which is created under the Ordinance, and secondly, that the amendment in the Ordinance was made after coming into force of the Regulations, hence to the extent of inconsistency, if any, Ordinance shall prevail and not the Regulations. In support of the proposition reference can be made to the case of Hirjin Salt Chemicals (Pak.) Ltd. v. Union Council and others (1982 SCMR 522).
42. The fourth and the last question on which leave was granted by this Court is that whether the Chief Minister was competent to pass the order of regularization of the approved plan and whether the same is covered under Regulation 16 of the Building Regulations, Part-I of the Karachi Building and Town Planning Regulations. First part of this question to the extent of regularisation of the approved plan has been adverted to and dealt with to some extent in the preceding paragraph of this judgment. If section 6 is read in conjunction with preamble and scheme of the Sindh Buildings Control Ordinance, 1979, it would appear that approval of plan is very important lever and deterrent which is intended to be done only after grant of no-objection certificate and it is at this stage that the constraints and limitations imposed by law on construction of buildings are considered in detail and all the formalities prescribed therein are to be followed and applied in accordance with the procedure laid down for preparation of plans as provided under section 7. Need was felt that power should be given to the Government to suspend or cancel such no-objection certificate before completion of construction of the building and in that context section 6 was amended by Ordinance III of 1990 and such power has been conferred upon the Government to do so. Not only that but subsection (6) of section 6 is also added to provide that the matter shall be reprocessed by the Authority in accordance with such directions as may be given by the Government. This means that the Government retains the power of suspending or cancelling no-objection certificate before completion of the building and also by way of rectification can restore such no-objection certificate on some terms and conditions which are to be fulfilled and complied with before the Authority, which is to reprocess the matter to give final shape to the specific directions made in that regard by the Government.
43. There is no cavil with the proposition that our Constitution contemplates parliamentary form of Government, in which executive head of the Government in the Province is the Chief Minister. In the Sindh Governments Rules of Business, 1986, while describing the powers of the Chief Minister it is provided that any order passed by the Chief Minister or any authority to whom he has delegated such power shall be deemed to be the order passed by the Government. It is so stated in rule 7, part III of the Rules of Business mentioned above. Such order of the Chief Minister cannot be called in question on the ground that it is passed in deviation of the Regulations because there is no such deviation. It is a separate and independent statutory power of the Chief Minister which is to be exercised by him within the framework of the Sindh Buildings Control Ordinance, 1979, if it is not inconsistent with other provisions of the Ordinance. Rules and regulations are subordinate and delegated legislation deriving authority and legal cover from the provisions of the Ordinance.
Regulation 16 of the Karachi Building and Town Planning Regulations relates to the powers of the concerned authority and prescribes procedure in case when building works are being carried out contrary to the provisions of the Regulations and in such case written notice is to be given to the person responsible for construction and if he fails to show sufficient cause to the satisfaction of the authority, then he can be required to demolish whole building or part thereof or bring construction in conformity with the Regulations or compound the offence and after realisation of composition fees, construction can be allowed as permissible. Composition is allowed under section 19 of the Sindh Buildings Control Ordinance, 1969 and the procedure is prescribed in the Regulations as mentioned above.
44. In the instant case, there appears to be no violation of the Regulations when the builders have got their building plan regularized after composition and have paid requisite fees for additional floors and have obtained no-objection certificate. Not only this but counsel for KBCA and KDA appearing before the High Court fully supported the case of the builders and made no objection.
They took the stand that the plan was approved and composition fees had been paid. Another noteworthy thing noticed in this case is that in the Clifton area and also in Frere Town Quarters, there are high-raise buildings constructed in the close vicinity of the plot on which disputed construction is made and the writ petitioners raised no-objection, hence their conduct appears to be not bona fide as they have indulged in pick and choose to object to the construction of high- rise building in this particular case, which has also been done belatedly. By that time vested rights accrued to third parties, who purchased the flats in the said building. In support of what is stated above, reference can be made to the case of State of Madhya Pradesh and others v. Nandlal Jaiswa l and others (AIR 1987 SC 251). In the reported case, in India licence was granted by the Government for manufacture and sale of country liquor and the licensee acquired land and constructed building thereupon for that purpose and the Constitution petition was filed in the High Court after a long delay. Relevant portion from paragraph twenty-three of report at page 272 is reproduced as under: " Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs with the High Court in deciding whether or not to exercise such jurisdiction."
45. It is a well-known and admitted fact that in the city of Karachi there is congestion on account of over-population and in such situation there is no other way out except construction of high-rise buildings. Such high-rise buildings are already in existence in the close vicinity of the building in dispute.
It is imperative upon the Court while exercising jurisdiction in a Constitution petition to see that discretion is to be exercised in such a way that mischief and chaos is prevented particularly when construction of high-raise building is in public interest and the construction of the building in dispute is not the first building in the area in the neighbourhood of which there are no high-rise buildings already constructed. If the writ petitioners did not want construction of high-rise buildings in Frere Town Quarters or in that matter in Clifton Area on the ground that it was purely residential area, then voice should have been raised by them against construction of high-rise buildings at the earliest opportunity long time ago when the scheme was prepared allowing such facility. Public opinion could have been moulded up by making it joint cause by writing articles in the print media to leave alone particular area of the city to remain forever residential area with houses and bungalows built prohibiting construction of high-rise building and flats of such type. Since it was not done at the proper stage, now it is too late in the day to raise such objection against construction of one particular building when it stands side by side with some other tall buildings. In such circumstances, the High Court should not have granted relief of demolition of such construction which was not in violation of the Regulations particularly when counsel for KBCA supported the claim of the builders. For facts and reasons stated above, we set aside the impugned judgment of the High Court and allow the appeal.
46. After hearing the case we had reserved the judgment and vide short order dated 27th November, 1994 the appeal was allowed for reasons to be recorded later, which are stated as above.
…and 49 more citing cases