1. KAMAL MANSUR ALAM, J.---The petitioners in this petition are aggrieved by the construction of the multi-storeyed building on plot No,2, FT-3, Frere Town Quarters, Karachi, commonly known as "Glass Towers".
2. 2.The petitioners have sought the following reliefs:-- (a)declaration be given that the plot has been converted contrary to K.D.A. Order and S.B.C.O. read with the Regulations.
3. (b)declaration be given that the cut line of the building on the plot has to be at least 50 feet from the main road.
4. (c)declaration be given that the building being constructed is contrary to Regulations as stated in Schedule G, item 90 Part II of the Regulations.
5. (d)declaration be given that the building being constructed is contrary to Schedule H given in Part II at page 92 of the Regulations.
6. (e)declaration be given that no approval can be given by the Chief Minister for construction of the building contrary to K.D.A. Order and S.B.C.O. read with the Regulations mentioned in prayer (a) to
(e) above and in any event is contrary to section 6(5) and (6) of S.B.C.O. read with the Regulations.
7. (f)the private Respondent be ordered not to construct the building contrary to K.D.A. Order and S.B.C.O. read with the Regulations.
8. (g)direct Respondents Nos.1 to 8 and 14 to demolish the building in so far as the same is contrary to the declarations prayed for above.
9. (h)direct Respondents Nos. 9, 10, 11 and 13 not to provide any amenities or to create any 3rd party interest in the building known as Glass Towers.
10. (i)any other relief this Hon'ble Coup deems fit.
11. 3.The plot on which the disputed building is being constructed is situated in the Frere Town Quarters which used to be essentially a residential area but later several plots in the area, mainly those falling on both sides of the main Clifton Road (Abdullah Haroon Road) were commercialised from tire to time and multi-storeyed commercial buildings raised thereon; such conversion having commenced, allegedly, way back in 1980, by now, admittedly, large number of such buildings have already come up in the area. The plot in question, presently owned by the respondent No,16, too used to be a residential plot before its commercialisation in July 1995, on payment of the conversion charges of Rs,2,28,38,400. The plan for constructing a commercial building comprising basement + ground + 1/3rd loft + 4 upper floors was finally approved by the Karachi Building Control Authority (respondent No,6) on 21-8-1995. Subsequently, respondent No,19 builder approached the then Chief Minister of Sindh, seeking permission for the construction of a high-rise building consisting of abasement + ground + mezzanine + 2 parking floors and 14 upper floors and the then Chief Minister of Sindh by order dated 19-1-1996 granted such permission. Construction on the plot was undertaken by the respondent No,19 and while it was still in the initial stages the officers of the respondent No,6 discovered deviation from the approved plan, whereupon notice was issued but before any demolition could be undertaken the owners filed on 25-1-1996 Suit No,55 of 1996 in this Court against respondents Nos.5 and 6 and obtained an interim order that; No adverse action will be taken against the plaintiff". This suit, we are informed, is still pending. With the above interim order in hand the construction continued and by the time this petition was filed and ad interim order restraining further construction was issued on 6-8-1996 the structure of the building is said to have almost completed.
4. Mr. Naimur Rehman, the learned counsel for the petitioners has challenged the construction of the aforesaid building broadly on the following grounds:-- (i)that the conversion of the said plot from residential to commercial was illegal, (ii)that the offending structure was being raised on portion of the Clifton Road (Abdullah Haroon Road) earmarked for future increase in its width, (iii)that the building in dispute was being constructed in violation of the 'approved plan, and (iv)that the permission granted by the then Chief Minister to the respondent No,19 for raising high- rise building consisting of basemnet + ground + mezzanine + 16 floors was contrary to law, rules and regulations.
12. However, last of the above objections was later not pressed after the statement of the learned Advocate-General Sindh that the permission granted by the Chief Minister for high-rise building had been withdrawn and it was stated at the bar by the learned counsel for respondents Nos.16 and 19 after due instructions from his clients that they would not construct any additional floor beyond the approved plan.
5. Before we take up the contentions of the petitioners' counsel, we would like to dispose of the objection raised by Mr. Abdul Hafeez ..Pirzada, learned counsel for respondents Nos.16 to 19, about the petitioner's' locus standi to maintain the petition. It was argued by the learned counsel that all the petitioners are residing at quite far off places from the building in question and that none of these is living in near vicinity thereof so as to complain of violation of personal right. It was submitted that unless some personal right of the petitioners had been infringed they would have no locus standi to maintain the petition. Support for the contention was sought from the following reported as well as unreported decisions including cases from Indian and English jurisdiction:-- "Unreported interim order in the case of Mst. Zubaida v. Pakistan State Oil House and others (Civil Petition No,D-210 of 1991).
13. Unreported interim order in the case of Ameer Nawaz Khan Zai and others v. Karachi Building Control Authority and others (C.P. No,2651 of 1993).
14. Unreported order in the case of. Muhammad Ismail and another v. Karachi Building Control Authority and others (C.P.0 No,2548 of 1994).
15. Agha Fakhruddin v. Muhammad Paryal and others (PLD 1989 SC 16).
16. Buxton and others v. Minister of Housing and Local Government (1961(1) Queens Bench 278).
17. Gregpry and another v. London Borough of Camden (1966(2) All ER 196).
18. Jas Bhai Moti Bhai Desai v. Roshan Kumar, Haji Bashir Ahmed and others (AIR 1976 SC 578).
19. 6.In the first case, it appears that after the construction of the disputed building had been made upto the 9th floor, objection to the construction was raised inter alia on the ground of violation of right of privacy of the petitioner who was residing at a distance of half kilometre from the offending construction and on such facts it was held that, "In these circumstnaces such question cannot be determined in these proceedings particularly as she is residing about half kilometre away."
20. 7.In the second order, the observation relied upon is that, "in order to successfully maintain a Constitution petition the petitioners must show that their enjoyment of a right has been violated or infringed by some action of the respondents."
21. 8.In the third case, the relevant observation is, "the mere fact that the proposed construction has been carried out in violation of the law or relevant rules is not sufficient to make the petitioner an aggrieved party as in such a case the dispute would purely be between the builder and the concerned authority under the said Ordinance."
22. 9.In the case of. Agha Fakhruddin, the facts were that the petitioner challenged the allotment of land to the respondent mainly on the ground that, the plot was an amenity plot reserved for children park and, therefore, could not be granted by the Government for residential purpose and for construction of a medical clinic. However, on fact it was found that the plot was not an amenity plot, as claimed. It was inter alia held in the case that:-- "There is yet another aspect of the case which was examined by us and that was as to what was the locus standi of the appellants to challenge the transfer in favour of the aforesaid respondents when they had neither any perosnal interest in the property nor were applicants for the allotment.
23. The appellants claimed to be neighbours and that the right asserted by them was in the nature of a right which they enjoyed with . all the other citizens of Sukkur. In other words they had claimed that they were acting pro bono publico, but even so their claim may have been justified if the plots in dispute were amenity plots reserved for children's park. Since this was not so the Provincial Government was entitled to dispose them of a either . for residential purpose or commercial purpose. The appellants were not applicants for these plots nor had they been made such a grant, hence they had no interest in the same, and therefore, had no locus standi in the matter to challenge the allotment in favour of the respondents."
10. The facts of the Buxton's case were that the Minister of Housing and Local Government allowed a company the right to develop certain land owned and occupied by it, whereupon the applicant whose land was adjacent to that of the company and was being used for agricultural and residential purposes, applied to the High Court to quash the decision of the Minister, on the ground that the proposed operations by the company would result in injury to applicant's land. The question in the case arose that as to whether the applicant is a person aggrieved within the meaning of statute. It has been observed that:-- "In my judgment, however, I am compelled to restrict the meaning of the words. 'person aggrieved' to a person with a legal grievance. Before the Town and Country Planning legislation any landowner was free to develop his land as he liked, provided he did not infringe the common law.
24. No adjoining owner had any right which he could enforce in the Courts in respect of -such development unless he could show that it constituted a nuisance or trespass or the like."
25. It has further been observed in this case, that:-- "Ever since the judgment of James, L.J. in the well-known case of In re Sidebotham, it has been generally accepted that the words person aggrieved' in a statute connote the person with a legal grievance, that is to say, someone whose legal rights have been infringed. James, L.J. said: 'the words 'person aggrieved' do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something."
26. 11.In the second case from English jurisdiction, the facts were that at the back of the plaintiff's houses there was an open space forming part of the property of a convent. The convent was granted permission to erect a new school in the grounds and allowed a means of access to the new school at a place near the two houses of the plaintiff with the result that hundreds of pupils would pass very close to the plaintiffs houses using the said access. Accordingly, the plaintiff brought an action for declaration that the grant of permissions were ultra vires the defendant. On an objection about plaintiff's, right to seek such declaration it was held that:-- "Looking at it in that rather simple way, it seems to me that the answer to the question which I have to determine is that the plaintiffs have no legal right to step in at all. They may have suffered damnum, that is to sag, loss in one way or'another, but they have not suffered injuria, that is to say, any legal wrong. There are many acts which cause loss which give no legal rights. Before one can come to a Court of a law, one must suffer an injuria as well as damnum; one must have suffered a legal wrong as well as an actual loss of money or amenity or something else."
27. 12.In the Indian case, the facts were that the District Magistrate granted to respondents Nos.1 and 2 a no objection certificate to the location of a cinema at a site. This certificate was granted on the direction of the Government. The appellant challenged the grant of the certificate mainly on the ground that the same had not been issued by the District Magistrate in the exercise of his own discretion but on the dictates of the State Government and, therefore, the grant lacked jurisdiction.
28. A preliminary objection was raised with regard to the locus standi of the petitioner to maintain the petition. It was held, that:-- "In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a-legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore, he is not a 'person aggrieved' and has no locus standi to challenge the grant of the No Objection Certificate."
29. 13.The unplanned, haphazard, mushroom growth of high-rise and multi-storeyed buildings in residential areas of Karachi without corresponding improvement in the amenities and services, like water, electricity, sewerage etc. is resulting in multifarious difficulties for the citizens; the residents of the area concerned, of-course, being the worst sufferers. Problems emerging from unchecked commercialisation of plots in residential areas by unscrupulous officials is assuming such alarming proportions that it no longer remains localised to the area, in greater or smaller degree, directly or indirectly it is affecting the public in general. The concept that person living in the immediate neighbourhood or very close proximity of an offending construction can alone be considered as aggrieved persons would no longer hold good in the peculiar situation prevailing in Karachi.
30. 14.Here, as is apparent from the memo. of petition, some of the petitioners reside within the Ferere Town Quarters in which locality the offending building is being raised and as such they are concerned with and have interest in preventing such construction as may be in breach of rules.
31. The petitioners have also challenged the action of the official respondents who have allegedly approved the plan in complete disregard of the rules and regulations and, have allowed construction in violation of the plan, rules and regulations. In the case of Multiline Associates v.
32. Ardeshier Cowasjee (1995 SCM R 362) in somewhat similar situation on the objection about the locus standi of the petitioners in that case who were residing at far away places from the disputed construction it has been observed:- "For the facts and reasons and case-law on the subject of writ some locus standi as mentioned above, we find that even though petitioners shown to 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 the scope as this case has characteristics of public interest litigation and the writ petitioners are probono publico. For such reasons, we hold that they could file the writ petitions and they had locus standi...."
33. 15.In the case of Mst. Sardar Begum Farooqi and 6 others v. Mst. Rashida Khatoon and 2 others (1990 CLC 83) the relevant observation is that:-- It will suffice to observe that the above cases have no application to the present case, as observed hereinabove the petitioners are in fact enforcing the statutory duty cast upon the respondents 2 and 3. In this regard it may be pertinent to reproduce relevant portion from an unreported order dated 24-5-1989, passed by a learned Division Bench of this Court in the case of Abdul Wahid Butt v. Mrs. Asma and others in Constitutional Petition No,D-290 of 1989 while granting an ad-interim injunction against raising of unauthorized construction of the nature in issues:-- We cannot be unmindful of the fact that it has now become common practice in the Karachi City that unauthorised constructions in the form of multistoreyed buildings are being raised which affect neighbours and the other residents of the locality as the supply of water and electricity are affected. There seems to be a marked distinction between a right to Maintain a suit and a right to maintain a Constitutional petition. In the former case a plaintiff should have a legal right, whereas in the latter case a petitioner may not have perosnal legal right in stricto senso, but may have some interest in the subject-matter of the writ petition. In the instant -case as pointed out hereinabove the private respondents have raised and are still raising constructions in violation of the approved building plan and the building bye-laws. Respondent No,3 as a statutory functionary under the Sindh Building Control Ordinance, 1979 is under the statutory duty to ensure the compliance of the building bye-laws. It cannot be said that the petitioner has no interest in ensuring that respondent No,3 discharges the above statutory duty. One of the prayers in the petition is that respondent No,3 be directed to demolish unauthorised constructions put up by the private respondents. We, therefore, are of tentatively view that prima facie the petitioner has locus standi to maintain above position. We are also inclined to hold that it is a fit case, in which a prohibitory interim injunction should be granted."
34. 16.Thus, it would appear from the recent trend of the pronouncements of the Superior Courts that for maintaining a petition under Article 199 of the Constitution all that has to be shown is that the petitioners have an interest in the subject matter which may not, necessarily, be a right as such in the stricto senso. As mentioned above, in the present case, some of the petitioners are residents of the same areas and have interest in the maintenance of the area as residential. Another reason why the petitioners have a right to maintain the petition is that the petitioners have also challenged the construction on the ground of it having encroached upon the proposed width of the main Clifton Road and, therefore, every citizen who may at one time or the other happen to use that road would be directly affected by such encroachment for this would result in the narrowing down of the road. For all the aforesaid reasons, we consider that the petitioners have locus standi to file the present petition.
35. 17.Maintainability of the petition was challenged also on the ground that the earlier mentioned Suit No,55 of 1996 filed by respondent No,16 against sixth respondent was still pending in this Court, and therefore, this petition in respect of the same subject-matter was not maintainable and that the petitioner could join that suit to agitate their grievances. Aid for the proposition was sought from the case of Abdul Karim v. Additional Commissioner (R) Multan and others (1986 CLC 2403) and Mst. Hajiani Khatija Bai and 9 others v. Karachi Building Control Authority (KMC) and 3 others (1997 M LD 852).
36. 18.The petitioner in the first case had challenged through a Constitution petition the orders of the Revenue Courts directing his eviction from some land. It, however, transpired that earlier he had filed a suit too against his eviction which was pending, but, this fact was suppressed in the petition.
37. On these facts the petition was found to be unwarranted as the relief claimed in the petition was dependent on the findings in the suit.
38. 19.In the other case the petitioner sought demolition of an unauthorised building, however, prior to the filing of the petition the owner of the building had instituted a suit in the Court of the Senior Civil Judge, Karachi and-obtained an order for the maintenance of status quo. In the above circumstances it was considered by the learned Judges of this Court that, "in presence of said order, which is passed by a competent Court, no order can be passed in the present matter" and that, "the present petitioner, if aggrieved by the said order of the VIth Senior Civil Judge, South, Karachi, could have filed an appeal as laid down in the case reported in PLD 1969 SC page 65 (H.M.
39. Saya & Co., Karachi v. Wazir Ali Industries Ltd. Karachi and another) or to have joined as party in the said and could seek vacation of the said order".
40. 20.Both the cases are distinguishable from the instant petition on facts. Here neither the petitioners instituted any suit in respect of the same subject matter nor any order exists so as to impede the passing of appropriate orders in this petition.
41. 21.There is no gainsaying that the suit filed by respondent 16 against respondents 5 and 6 in respect of the disputed construction is pending on the original side of this Court, but, it apparent from its plaint that the same was filed in altogether different context. There the respondent No,16 seeks to restrain the sixth respondent from sealing or demolishing the construction which according to them was being raised in conformity with the rules and regulations while in the present petition several controvercial issues have been raised, such as, conversion of the plot from residential to commercial, approval of plan in violation of statute, rules and regulations, encroachment of road etc. Thus, the controversy involved in the present petition has much wider range than that in the said suit. Moreover, having regard to the purpose of that suit, the reliefs claimed therein and the averments made in the plaint, perhaps the petitioners would neither be necessary nor proper parties to the suit, for, most of them do not have "personal legal right in strito senso", but, they do have some interest in the subject-matter of the petition. Reference may be made to the following observation in the case of Mst. Sardar (supra), "There seems to be a marked distinction between a right to maintain a suit and right to maintain a Constitutional petition. In the former case a plaintiff should have a legal right, whereas in the latter case a petitioner may not have personal legal right in stircto senso, but may have some interest in the subject-matter of the writ petition."
42. 22.Having said that much on the maintainability of the petition, we now pass on to, the first contention of Mr. Naimur Rehman, pertaining to the commercialisation of the plot in question. It was submitted that under the original planning of the city, the Frere Quarters area was purely a residential area where construction was allowed only upto two storeys. Now by reason of the conversion of the said plot from residential to commercial and approval of plan for raising multi- storeyed building thereon the residents of the area would be put to immense inconvenience and the resultant strain on the amenities like water, electricity, gas, sewerage line would adversely affect the residents. It was stressed that, conversion of plots from residential to commercial or gran( of permission for construction of multi--storeyed commercial building in residential areas was contrary to good organised town planning. Reference was to following passage from Encyclopaedia Britannica -- "Goals of modern urban planning. The ultimate goals had always been social, even during the period when city plans themselves related only to physical change. They had been and continued to be deeply involved with intermediate economic objectives. The expression of the goals was of course coloured by the culture of the society seeking them. Of increasing weight was the goal of equality of opportunity and tha redress of the grievances of disadvantage minorities. Within this value system the physically oriented urban planning of the first half of the 20th century had evolved a set of environmental objectives that continued to be valid: (1) the orderly arrangement of parts of the city --residential, business, industrial -- 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 each part' of the city to optimum standards, in terms of lot size, .sunlight, and green space in residential areas, and parking and building in business areas; (4) the provisions 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 adequate size, location and quality; (6) the provision of adequate and economical water supply, sewerage utlities, and public services."
43. 23.Conversion of the said plot was also attacked on the ground that this could be done only by the K.D.A. (respondent No,4) in accordance with the procedure laid down under Article 402(4) of the Karachi Development Authority Order, 1957, but in the present case it was the respondent No,5, Karachi Metropolitan Corporation (KMC) which had permitted the commercialisation of the plot.
44. 24.Opposing the petition, Mr. Abdul Hafeez Pirzada submitted that it suffered from laches having been filed too long after the commercialisation of the area. Conversion of the plot in the area, it was pointed out, started around 1980 and by 1984 it had been declared as a commercial zone with the result that by the time the disputed plot was commercialised and construction raised thereon large number of multistoreyed commercial buildings had already come up in the vicinity. It was stressed that the plot in question was converted in July 1995, the plan for the multi-storeyed building was approved in August 1995 and when the present petition was filed after about a year, on 5-8-1996, the structure of the proposed building had been completed.
45. 25.It was contended that as owners of the plot, the rights of respondent No,16 to put it to any lawful use and to raise construction thereon for purposes of business and trade was guaranteed to them under Articles 18 and 23 of the Constitution.
46. 26.It is true that an owner of land is entitled to use the same for a lawful purpose, but such right is not unbridled, it is circumscribed by several factors and can be exercised keeping in view the provisions of law, rules and regulations, if any, applicable to the region and the rights and convenience of other property-holders and residents of the area. It will indeed be stretching such right too far to justify raising of high rise building on a plot situated in a purely residential area which under the law, Rules and Regulations is earmarked for raising a double storeyed residential house only and has been leased out on such terms. People choosing to reside in such residential area specially in the city of Karachi, really opt for quieter surrounding, lesser polluted environment, cleaner atmosphere away from the noisy traffic and the hustle and bustle of commercial activities, where their rights of privacy and easement are secured. These are valuable rights, too valuable to be sacrificed at the altar of political bribery and expediency or individual greed. In this context, we may mention that the statutory provisions as also those under the Karachi Building and Town Planning Regulations are too flexible and susceptible to easy exploitation. and manoeuverability by the unscruplous and gteedy. These have become wholly inadequate to cope with the peculiar situation of Karachi and need to be suitably altered to safeguard the interest of the residents, who under the existing procedure practically have no say in the conversion of their area from residential to commercial: One way of putting a check on such unplanned growth of the city would perhaps be to make it obligatory on the person applying for conversion to obtain consent of the residents of the area, for it is they who would be affected most by such conversion. Reference may here be made to the observation of Ajmal Mian, J. (as his Lordship then was) in the case of Abdul Razak v.
47. Karachi Building Control Authority and others (PLD 1994 SC 512) with reference to. the passage from Encyclopaedia Britannica quoted earlier in this judgment:-- "From the aboveqoted passage from Encyclopaedia Britannica, it is evident that the concept of modern city planning inter alia envisages the orderly arrangement of parts of the city-residnetial, 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."
27. In the present case, however, this is not the first plot in the area to be converted to commercial use nor is the building in question the first multistoried structure. Admittedly, the process of conversion of residential plot into commercial was going on in the locality since 1980 and in 1984 the road side along the Clifton road was declared as commercial zone and large number of multistoried buildings already existed in the vicinity of the disputed building but none of the petitioners ever raised any objection to such conversions and constructions. Even in the case, of the disputed plot and the construction, by the time this petition was filed, almost after an year of the commercialisation of the plot, the structure had not only been raised but third party interest too had been created therein.
28. Submission of the petitioners' counsel that K.D.A. alone could have allowed the conversion of the said plot into commercial does not appear to be well founded, for, admittedly the plot belonged to the K.M.C. and under the terms of the lease K.M.C. was authorised to permit its coversion. It is apparent from the letter permitting the conversion of the said plot that both K.M.C. and K.B.C.A. were involved in granting the permission. The counsel for the K.D.A. also admitted that the land in the area where the plot is situated is owned by the K.M.C. and that K.M.C. is competent to allow conversion of plot to a use other than that for which it was originally earmarked. In these circumstances, the belated objection of the petitioners to the conversions of the said plot and the construction thereon is not fair and we consider that any interference in the conversion of the said plot or in the construction of the proposed building thereon, so far as such construction is in conformity with the relevant statutory provisions and the Rules and Regulations, is not warranted.
48. Another reason why the conversion of the said plot does not now call for any interference is that on the posts in the neighborhood of that plot multistoried buildings have already been raised and, therefore, perhaps the said plot can no more be used for residential purposes.
29. As regards the next contention of the petitioner's counsel, it was strenuously denied by the counsel for the respondents Nos.16 and 19 that the offending structure had encroached upon any part of the land earmarked for the proposed future expansion of the Clifton Road (also known as Abdullah Haroon Road). Referring to the layout plan allegedly prepared in 1972,. Deputy Commissioner's letter dated 20-5-1996, and brief prepared by the Chief Controller of Buildings for the Chief Minister, it was urged that after the future expansion the width of the Clifton Road was to vary from place to place starting from 150 ft. immediately after the Clifton Bridge and narrowing down to about 120 ft. in front of the disputed building of Glass Towers. The layout plan said to have been prepared in 1972 bears no date and seems to have been drawn much later, as some of the buildings shown in the plan were allegedly constructed after 1972. Much reliance cannot, therefore, be placed on this document. As to the other documents referred to by the counsel, these appear to be based on the said layout plan and as 'such cannot also be relied upon. But even if the 1972 layout plan was assumed to be a genuine document still it could no longer be acted upon in 1995 when the plan for the construction of the Glass Tower was Approved, for, by then the proposed expansion of the Clifton Road had already been clearly settled under the Building and Town Planning Regulations prepared In 1979 and still in force, Part 9 of Volume II of the above Regulations deals with "Major Roads Under Road Widening", It would be beneficial to reproduce here paragraphs 1,2 and 3 of this Part: "1. The-purpose of the road widening of major roads is to relieve traffic congestion on the existing roads, promote traffic safety on streets, convenience of pedestarians, general convenience and welfare of residential, commercial, industrial developments and to widen the roads in order to cater for the increased vehicular traffic.
2. For the purposes of this part 'Road Widening' means proposed widening of any road/street by drawing up new alignments. All the buildings on the roads declared under road widenings shall be constructed only according to the set back prescribed by Master Plan and Environmental Control Department (Authority under Sindh Building Control Ordinance, 1979) only.
49. ' For the purposes of these regulations roads listed in this Schedule 'G' which are already under implementation shall be considered as declared . "
50. ' Under para. '2 above the construction of buildings "on the roads declared under road widening' have to be according to set back prescribed by Master Plan and Environmental Control Department, and under para. 3, the roads listed in Schedule "G" shall be considered as declared" for purposes of the regulations. Item 30 of-the said Schedule "G" pertains to Sir Abdullah Haroon Road and its proposed width is shown as 36.6 metres from Musical Fountain to Hoshang Road and 45.7 metres thereafter upto Clifton Scheme, except for the portion of Clifton Bridge which is proposed to be 61.0 metres. Thus, it is evident from the aforesaid provisions of the said Regulations that the proposed width of Abdullah Haroon Road/Clifton Road in front of the Glass Towers has been "declared" to be 45.7. metres which is equivalent to 150 ft., and therefore, this building had to be constructed according to the prescribed set back leaving enough space for the proposed road expansion, but,. admittedly it has been so constructed as to leave only 120 ft. width of the road in front of the building. It was submitted that the plan approved by concerned authorities also provided for 120 ft. width of the road in front of the building and the respondents only followed the plan.
51. 30.However, we consider that it was incumbent upon these respondents and their architects to have submitted plan in consonance with the said Regulations. It is pertinent that, even regulation 16(2) (c) of the said Regulations, whereunder offences arising out of constructions carried out contrary to the provisions of the Regulations, can be compounded, prohibits composition where, "the building works obstruct any future road widening scheme of any concerned authority".
52. Obviously, the intention of the Regulation is that no building should be allowed to be constructed in a manner that it obstructs future expansion of any road. Here, in complete disregard of the Regulations, the offending building has encroached upon the area earmarked for the future expansion of the Clifton Road thereby obstructing its widening to the proposed width of 150 ft. It needs to be appreciated that if this building is allowed to be constructed in the position it is being raised the result would be that when in future the Clifton Road is widened to the full extent of 150 ft., the Glass Towers would be the sole building, between the Clifton Bridge and the next roundabout, protruding almost 30 ft. on the road thereby creating a bottleneck which will remain there to obstruct the smooth flow of traffic for a long time. As such, in order to avoid such situation it is desirable to take immediate remediable steps. We, therefore, direct that such portion of the said structure of Glass Towers constructed a long and facing, the Clifton Road as may obstruct the future expansion of that road to the proposed width of 150 ft. in front of the said building, will be demolished and for proposes of identifying with exactness the portion to be so demolished we direct the respondent No,6 to determine the same on due measurement.
53. 31.As to the allegation about 'the said building being constructed in violation of the approved plan, we do not consider it appropriate to express any opinion thereon as it is the subject-matter of -the aforesaid Suit No,55 of 1996 pending on the original side of this Court.
54. 32.The order of interim injunction in operation in respect of the said building will now apply only to the extent of the portion of the said building which has been directed to be demolished.
55. 33.For the reasons discussed above, this petition is partly allowed to the extent mentioned above with no order as to costs.