' GHOUS MUHAMMAD, J.---The facts leading to this petition are that the petitioner's Company which owns a plot of land No,F.2/1 Gulshan-e-Iqbal, K.D.A. Scheme-24, Karachi, obtained on 4-11-1978 approval of Karachi Development Authority for the construction of a multi-storeyed building with ground plus fifteen storeys. Subsequently sanction of the Water Board was also acquired and the requisite amount was paid on 27-9-1979. No order of the Water Board was placed on record but according to the learned counsel of the petitioner, connection of water stood automatically sanctioned alongwith the approval dated 4-11-1978.
2. The petitioner raised construction up to ground plus two storeys but in 1992 it decided to downgrade the construction of the building from ground plus fifteen storeys for Blocks-A and ground plus seven storeys for Blocks-B. Accordingly the petitioner submitted revised plans which were accepted by KDA on 31-3-1992. Subsequently vide letter dated 30-12-1992 it submitted to the Deputy Controller of Buildings, KBCA, the detailed report for plumbing and electric work on the said plot (Annexure 'G' to the petition). No formal approval was received from KBCA but the petitioner relied on section 13 of Karachi Building and Town Planning Regulations which provides that if no sanction is granted within 60 days and plan has also not been rejected within that period, it would be assumed that the plan had been duly approved. On the basis of this assumption the petitioners claim that the detailed report submitted by them on 30-12-1992 stands approved. However the petitioner did not raise any construction in accordance with its revised plan.
3. According to the petitioner they submitted structural design and/or environmental design to KBCA for its approval but the same has not been approved for want of N.O.C. From Karachi Water & Sewerage Board. It transpired that through Housing, Town Planning, Environment Department, Government of .Sindh issued a Notification dated 2-12-1993 imposing with immediate effect a ban on construction of high-rise buildings. The notification reads as under:-- No, Government of Sindh Housing Town Planning and Environment Department.
Karachi, dated the 2nd December, 1993 Notification ' No, SO-II (KDA) 8-69/92. -The Government of Sindh has been pleased to put a ban on construction of High Rise Building with immediate effect due to scarce availability of utilities within the jurisdiction of Karachi Division which are above ground + four floors until further orders.
' This issues with the approval of the competent authority.
(Sd.)
(Ahmed Maqsood Hameedi), Additional Chief Secretary.
' No, SO-II(KBA) 8-69/92 Karachi dated 2nd December, 1993.
4. The petitioner claims that its project was cleared from the ban by the scrutiny committee constituted by the Government of Sindh under Chairmanship of the Additional Chief Secretary, Ministry of Local Government, to scrutinise afresh the high-rise building cases: No letter of such clearance or other documents in proof was produced by the petitioner. This petition has been filed to seek the following reliefs:--
(a) to declare that the general ban on General High Rise Building as per Annexure 'I' is not applicable on the petitioners as the Scrutiny Committee of respondent No,1 had already cleared the case of the petitioners as finding no violation of any kind;
(b) To direct the respondent 'No,2 to approve the structural plan of the building on plot No,FL/1, Block 16, Gulshan-e-Iqbal, K.D.A. Scheme No,24, Karachi, as Per Annexure 'G' already submitted to respondent No,2 in terms of sections 6 and 7 of the Sindh Building Control Ordinance, 1979 and the respondent No,2 shall not withhold the structural plans for want of N.O.C. From Utility Service since not required under section 6-A of the SBCO, 1979 stands good. In the case of the petitioners and the action of the respondent No,2 in withholding the structural plans of the petitioners is mala fide, ultra vires, illegal and without jurisdiction;
(c) To declare that the proposed structural plans (Annexure 'G') furnished to the respondent No,2 stood approved in terms of Regulation 13(3) of the Building Regulation 13(3) of the Building Regulation Part I of the said respondent;
(d) Costs of this petition;
5. Pre-admission notices were issued to the respondents i,e, Government of Sindh and the KBCA.
Comments were filed by KBCA which denied that any such clearance was given to the petitioner.
According to it the revised building plan was under process and final approval was not given and the letter dated 31-3-1992 was issued prior to the notification dated 2-12-1993. Mrs. Zahida Naqvi, learned Advocate of K.B.C.A., pointed out that as a result of the ban K.B.C.A. Was not competent to approve high-rise building plan for more than ground plus four floors. Furthermore, according to the respondents, the N.O.C. Earlier issued to the petitioner for water connection was not accepted by the concerned authority in view of the change in the conditions regarding availability of utilities.
6. The petition was admitted to regular hearing and relevant portion from the admission order is reproduced as under: "The petitioner had raised construction on the assumption that it would be ground plus fifteen storeys and now that the proposed structure has been downgraded, there should be no question to obtain fresh clearance from Structural Department. Fresh clearance would have been necessary only if the petitioner had upgraded the proposed construction from ground plus fifteen, to say, ground plus twenty storeys. Both these objections of the respondents are therefore untenable. The only point which remains for consideration is as to whether the ban imposed on high-rise buildings vide Notificaticn of 2-12-1993 should be deemed to cover the construction on the plot of the petitioner or not. We would admit the petition for consideration of this short point."
7. The vires of the Notification dated 2-12-1993 has not been challenged. On the contrary, Mr. Amanullah Khan, Advocate vehemently urged that 'the petitioner's plea is that the same is not applicable to it because the Scrutiny Committee of the Government of Sindh finding no violation of any kind granted clearance. This fact has been denied by the other side and as already mentioned the petitioner could not produce any document' in support of this despite sufficient time given to it.
This is a question of fact and the burden to prove it lay on the petitioner which it failed to discharge.
In Constitutional jurisdiction, the declaration of the nature sought in clause (1) of the para relating to relief cannot be granted.
8. It is evident that the ban envisaged by the Notification is applicable to all such buildings as ate above ground plus four floors.. The petitioner has not been able to demonstrate as to how it was not applicable to it when admittedly its revised building plan was for at least seven floors.
9. Mr. Abdul Ghafoor Mani, learned Advocate-General Sindh contended that the petitioner was not entitled to the grant of permission on the ground that it would amount to serious environmental hazards for the people of the area and the project would consume lot of water and there would be pressure on other services such as water, sewerage etc. He submitted that the permission to petitioner company was originally given in 1978 but since then conditions have changed tremendously. He, however, submitted that the Government would consider the project if the petitioner was able to obtain N.O.C. From the Karachi Water and Sewerage Board.
10. It is apparent that the ban in the Notification is because of limited availability of utilities and the Government is competent to relax restriction if the proposed project does not adversely affect the availability of utilities. Karachi Water and Sewerage Board is not a party before us. It appears that the petitioner did not approach Karachi Water and Sewerage Board for its N.O.C. Presumably on the ground that it was not a requirement of law.
11. We are, therefore, unable to make any observation as to why such an N.O.C. Could not be granted. The action of the Government in demanding the N.O.C. Could neither be said to be unlawful or unreasonable. It would be pertinent to observe that one of the prime duties of every Government is to ensure requisite provision of water, sewerage, a pollution-free environment etc., without which any residential project will not only be incomplete but will also add to the magnitude of the problems of the residents of area or locality. As.Such it will be in public interest not to permit any residential scheme to assume a size and dimension which is in flagrant disregard of the availability of utilities. One will certainly notice mushroom growth of high-rise buildings in Karachi predominantly motivated by Commercial considerations which without being equipped with necessary amenities had intensified the every growing miseries of the urban population.
' In view of the circumstances mentioned above, we are of the opinion that the petitioner is not entitled to the discretionary relief and we therefore, dismiss the petition with no order as to costs.
' These are the reasons for our short order dated 18-9-1995.