ARDESHIR COWASJEE and 10 others vs KARACHI BUILDING CONTROL AUTHORITY (KMC), KARACHI and 4 others

AJMAL M1AN, C.J.---The above appeal was disposed of by a short order dated 3-5-1999 for the reasons to be recorded later on. We intend to reocrd the same.

The above appeal has been filed with the leave of this Court against the judgment dated 25-5-1995 of a learned Division Bench of the High Court of Sindh, Karachi in Constitution Petition No,D-3501 of 1993. Filed inter alia by the present appellants, challenging the order dated 9-3-1991 or respondent No,3 allowing the construction of a high-rise building i.e, commercial-cum-residential building on a plot of land, measuring 4851.61 sq. Yards, bearing No,ST-15, Blcok-3, Scheme No,5, Karachi (hereinafter referred to as the Plot), carved out in 1976 from the land, measuring 132 acres, earmarked for construction of Bagh-e-Ibne-Qasim, situated near Jehangir Kotari Parade, Clifton, Karachi, facing the Arabian Sea (hereinafter referred to as the Park), dismissing the same.

2. The brief facts are that the Karachi Improvement Trust, which was incorporated under the Karachi Improvement Trust Act, 1950, framed a housing scheme, in which it earmarked the aforesaid land, measuring 132 acres for the Park under the aforesaid name of Bagh-e-Ibne Qasim, which was duly gazetted on 23-3-1956. Subsequently, upon formation of Karachi Development Authority (K.D.A.) under the Karachi Development Authority Order of 1957 (hereianfter referred to as the Order), the erstwhile Government of West Pakistan again notified the above scheme as Karachi Development Scheme No,5 and gazetted the same on 30-10-1964. After that the Government issued direction of the development and encouragement of rereational facilities. As regards the Park, it was specifically stated that the main part in the above area of 132 acres was to be provided with amusement parks, recreational facilities, restaurants, refreshment stalls, ponds, sea-shall shops, swimming pools, Lily ponds, rocky garden, formal garden, antique shops, fountains, telescope corner, picnic spots, band stand, skating rink, terrace garden etc. On 1- 4-1976 the land for the Park was revised, whereby the Plot was carved out and was reserved for a revolving restaurant only. It seems that on 19-7-1976 the Plot was allotted in favour of M/s Marvi Investments. It also seems that after the expiry of nearly 24 years an allotment letter in favour of M/s Marvi Investments was issued on 8-4-1990. The latter after the expiry of about five weeks on 12-5-1990 transferred the Plot in favour of respondent No,5, namely, M/s Pearl Builders (Private) Limited.

3. It appears that respondent No,1 (i.e, Karachi Building Control Authority) by its Letter No,KBCA/DCB- XI/58/70/90, dated 19-7-1990 i.e, within two months from the date of application for the transfer of the Plot, approved respondent No,5's plan on the following conditions: "The building plan for the abovementioned plot attached herewith are hereby approved architecturally construction cannot be initiated before structural approval of the building plans have been obtained.

This approval is liable to be cancelled due to any misrepresentation of facts.

CONDITIONS This approval has been approved with the following conditions:

1. In case of any complaint/dispute the KDA/KBCA shall not be the party and shall not be responsible.

2. Subject to approval from D.C.B. (Structure) and D.C.B. (Design) K.B.C.A.

3. Car parking space should not be misused under any circumstances. This approval is only for Basement + Ground + Mezzanine + Parking floor + 13 upper floors.

Subject to approval of Utility Agencies like K.W.S.B., K.E.S.C., Karachi Gas, T&T Department and other concerned agencies."

It further seems that by a general order dated 4-8-1990 passed under section 6 (5) of the Sindh Building Control Ordinance, 1979 (hereianfter referred to as the Ordinance), the Government of Sindh rescinded all the orders granting approval of building plans. Thereupon, respondent No,5 filed an appeal before respondent No,3, which was allowed by order dated 9-3-1991, as under:-- "Examination of the record clearly establishes that the permissions on which the appellant is relying were obtained in an illegal manner and are completely violative of the applicable regulations and rules. It was only through the intervention of the Minister that the appellant was enabled to have a plot ratio in excess of that made applicable and also to encroach upon the C.O.S. In light of the above, this appeal is disposed of in terms that the plot ratio allowedthe Appellant is cancelled. The appellant must abide by all the applicable regulations and rules, which include the conditions that, the plot ratio applicable is 1:6 and that C.O.S. Of 20 feet be left all around any proposed building. The appellant will not be entitled to any concessions and will be allowed to construct a building strictly in accordance with the law."

4. After that respondent No,5 submitted a revised plan. It appears that while the above revised plan was under consideration, appellant No,1 addressed a letter dated 15-6-1992 to the Commissioner of Karachi, stating as follows:-- "Dear Commissioner KEHKASHAN SCHEME 5 BLOCK 3 Plot-ST-15 REVOLVING RESTAURANT The above plot (relevant K.D.A. Plan sketch attached) was designed for the building of a revolving restaurant atop a high observation towar, high enough to provide a clear 360 degree panorama view (as in Hamburg and other places).

The allottees have now managed to obtain permission to build a highrise building accommodating shops and flats atop which they say they will be building a revolving restaurant. This is a deviation from the original purpose of the plot.

I write to enquire whether the land use (applying Article 52-A of the K.D.A. Order) has been changed or whether the plot remains as designated for its original purpose. Yours sincerely, (Sd.)

It may be observed that the Controller of Buildings K.D.A. Recorded the following note dated 25-6-1992 on respondent No,5s request for approval of the revised plan and submitted the same to the Director, MP&EC: "25. The above report of D.C.B. Concerned may please be seen.

By reviewing the file as desired at para. 14/N, it has been observed as follows:--

26. 'The builder has submitted his revised proposal on the plot ratio of 1:6 as per cpndition No,1, referred to above but the number of floors have now been increased from Basement + Ground + 1/3 Mezzanine + parking + 13 floors (as approved in original plan) to Basement + Ground + 1/3 Mezzanthe + Parking + 16 floors which is in conflict in Condition No,3. '

27. The above position needs to be apprised of the Competent Authority being an important case included in 64 N.O.C. Cases.

(Sd.)

CONTROLLER OF BUILDINGS, K.D.A."

In turn the Director, MP&EC submitted to the Director-General K.D.A. With the following comments: "A.C.S. May like to review his orders in the light of para. 10, para. 26 and 27 are self-exmpenatory. Only Government if competent to make changes in restored N.O.C.

(Sd.)

25-6-1992"

Thereupon, the Director-General K.D.A. Recorded the following note:-- "I would request Secretary H.T.P. Not to allow further concessions on this plot. We have already given enough. As a matter of prnciple only a tower with revolving restaurant is permissible. There would be criticism in pubic and definitely Court case on this plot.

(Sd.)

25-6-1992"

5. However, the above plan was approved on or about 4-7-1992. Against the above approval protests were made. It seems that the then Chief Minister Sindh, constituted a Committee to examine inter -alia above issue, which in turn formed a high-rise Sub-Committee comprising inter alia: Mrs. Yasmin Lari, Architect.Chairperson Mr. Muhammad Hussain.COB (KDA)

Mr. Rauf Akhtar Farooqui.COB (KMC)

Mr. Ejaz Ahmed. COB (KMC)

Mr. Aga Maqsood Abbas.COB(KDA)

Mr. Ardeshir Cowasjee. Member Mr. Habib Fida Ali, Architect.Member Mr. M.M. I. Hussain, ABAD.Member Mr. Firdous Shamim, ABAD.Member The above Sub-Committee held meeting on 5-7-1993 at 2.00 p.m. And inter alia considered the case of the high-rise building in question of respondent No,5 (which was given the name of "Costa Livina") and made the following observations: "(a) Allotment Order No, KDA/Com.Cell/ST-15/Bl-3/Sch.5, dated 8-4-1990 and site plan shows that the subject site was allocated for a Revolving Restaurant (Photo copies of site plan, allotment order and part layout plan of K.D.A. Scheme 5 enclosed).

(b) It is evident that the original scheme envisaged that whole of the sea front of Bagh-e-Ibne-Qasim would be free of any obstruction/structure/ building, affording a clear view of the sea.

(c) Subsequently, due to political pressure or other considerations, the use of the plot was modified, and orders of the then minister the sr rules were framed in violation of the original layout plan and purpose of the notified scheme.

(d) What finally has been approved is a 15-storey building. This is in violation of the original notified scheme and the sanctioned layout plan.

(e) A high-rise building cannot be built in a park, which is an amenity and a much required open space.

(f) Committee recommends that the building not be allowed to be built. Only an observation tower having a Revolving Restaurant at the top may be allowed to be built as originally intended. A note of dissent of ABAD is enclosed."

After that it appears that appellant No,1 addressed another letter dated 18-8-1993 to the then Chief Minister of Sindh, which reads as under: "Dear Chief Minister, COSTA L1VINA Illegal and incorrect permission to construct in Clifton's Main Park, the Bagh-e-Ibne Qasim, a high-rise complex, a project named Costa Livina, was given by the former Chief Minister of the Province, Syed Muzaffar Ali Shah.

There was a public outcry, so Muzaffar referred the matter to a committee, which in turn formed a sub- committee and asked it to make an in-depth assessment of the Costa Livina project and prepare a detailed report as to whether it would be proper to allow such a construction to be raised in the park.

The report was completed and given to Muzaffar. It is lying in your office files and I would request that you send for it, study it, comply with the recommendations of the committee and cancel this permission so wrongly given.

Yours sincerely, (Sd.)

End: My articles of June 18, 1993 of July 30, 1993"

6. It may be stated that in spite of the above protests, respondent No,5 started construction some time in June, 1993, as per its averment. Thereupon, the above Constitution petition was filed on 18-12-1993, which was admitted on 26-12-1993 for regular hearing and hearing of a stay application. After that on 18-1-1994, a Division Bench of the High Court of Sindh granted an ad interim injunction restraining respondent No,5 from raising of construction. Eventually, the above petition was dismissed by a Division Bench of the above High Court by the impugned judgment, dated 25-9-1995, inter alia on the following grounds:-

(i) That no relief was sought by the appellants with regard to the conversion of the Plot from the Park to commercial.

(ii) That the appellants had assailed the order dated 9-3-1991 of the Additional Chief Secretary, Government of Sindh passed under section 6 (6) of the Ordinance and not the subsequent order dated 24-6-1992 which superseded the above earlier order.

(iii) That the appellants had failed to show that any or some of their rights were injuriously affected, and therefore, they were not entitled to maintain the above petition.

(iv) That the plot was allotted as a commercial plot and the words 'revolving restaurantwere placed in a bracket and, thus, there was no bar to the construction of the building.

(v) That the petition would also fail for the reason that the appellants had not challenged the construction of other such buildings in the vicinity of the building in question which were much closer to the residence of the appellants.

(vi) That the petition also suffered from laches.

In the judgment under appeal reliance as placed on the judgment of this Court in the case of Multiline Associates v. Ardeshir Cowasjee and others (PLD 1995 SC 423) (also reported in 1995 SCM R 362).

7. Thereupon, the appellants filed a petition for leave to appeal, which was heard by a Bench comprising Saleem Akhtar, Mukhtar Ahmad Junejo and Nazir Aslam Zahid, JJ. It was inter alia urged by the learned counsel for the appellants that this Court while deciding the case of Multiline Associates v. Ardshir Cowasjee (supra) had not taken into consideration an earlier judgment of this Court also rendered by a Bench of three learned Judges in the case of Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512), in which somewhat contrary view was taken on certain points. The above petition was opposed by the respondents. However, leave was granted with the observation that there appears to be a conflict in views expressed in the aforesaid two judgments of this Court and that such conflict was noted earlier in the leave granting order in Civil Petition No,246-K of 1995 and therein, it was suggested that a larger Bench be constituted to resolve the above conflict. It may be observed that Mukhtar Ahmad Junejo, J. Agree with the grant of leave as proposed by Saleem Akthar, J. In his order (to which Nasir Aslam Zahid, J. Agreed) but recorded his separate note indicating that the appellants had no case on merits.

8.(a) In support of the above appeal Mr. Naim-ur-Rehman, learned counsel appearing for the appellants, has vehemently contended as under:--

(i) That the grounds found favour with the learned Division Bench of the High Court for declining the appellantsabove Constitution petition are not sustainable in law.

(ii) That since the Park was for the benefit of the general public and as most of the appellants are residents of Scheme No,5 wherein the Park is situated, they have locus standi to maintain the above Constitution Petition.

(iii) That Constitution Petition did not suffer from any laches of the nature which would warrant dismissal of the same.

(iv) That admittedly in the approved layout plan 132 acres of land was reserved for the Park out of which the plot was carved out for a-revolving restaurant which had direct nexus with the objects of the Park and, therefore, the high-rise building of the nature could not have been allowed to be raised in view of Articles 40 and 52-A of the Order, and of Para.3 of Schedule-D to the Karachi Building and Town Planning Regulations, 1979 (hereinafter referred to as the Regulations).

(v) That the proposed building is also in contravention of the Regulations.

(b) On the other hand, Mr. Farooq H. Naik, learned counsel appearing for the respondents, has contended as under:--

(i) That the Constitution Petition suffered from laches and, therefore, was rightly dismissed by the High Court inter alia on the above ground.

(ii) That the carving out of the Plot for commercial purpose out the land reserved for the Park had not been challenged by the appellants in their Constitution Petition and. Therefore, no exception could be taken to the raising of a high-rise building to be used for commercial-cum residential prupose.

(iii) That the appellants had no locus standi to maintain the above constitution Petition.

(iv) That the writ of mandamus could not have been issued at the behest of the appellants as no justificable right of the appellants was infringed as guaranteed under the Constitution or law.

(v) That respondent No,5 is a bona fide purchaser of the plot from M/s Marvi Investments and as they have already raised considerable construction during the periods which had lapsed from the date of'start of construction in June 1993 till 18-1-1994 when an ad interim prohibitory injunction was granted by the High Court and from 1-10-1995 to 25-5-1996 when no prohibitory order was in the field after the dismissal of the above Constitution Petition till the grant of ad interim injunction by this Court, the principle of locus poenitentiae is attracted and, thus, the Constitution Petition has been rightly dismissed by the High Court.

(vi) That a number of high-rise buildings have been constructed even on the residential plots and, therefore, if respondent No,5 is to be singled out, it will be violative of Article 25 of the Constitution.

9. The questions whether the appellants had locus standi to file the above Constitution Petition and whether the same suffered from laches, depend on the fact, whether the Plot was part of a public park and, whether factually the Plot was carved out from the land of the park for the use of commercial purpose, which is understood in the ordinary parlance. It may again be stated that land, measuring 132 acres, was earmarked for the Park even under the scheme framed under the Karachi Improvement Trust Act, 1950, which was duly gazetted on 23-3-1956. Upon the formation of the Karachi Development Authority (K.D.A.) under the Order, the erstwhile Government of West Pakistan again notified the aforesaid Karachi Development Scheme No,5 [hereinafter referred to as the K.D.A. Scheme No,5 (Clifton)] and gazetted the same on 13-10-1964. The above land measuring 132 acres was again reserved for the Park. This fact has not even been disputed by Mr. Farooq H. Naik, learned counsel for respondent No,5 in view of overwhelming relevant documents on record. The Minister for Housing, Town Planning, and Local Government, Government of Sindh launched brochure of the above K.D.A. Scheme No,5 under the direction of the then President of Pakistan, Mr. Zulfiqar Ali Bhutto, through his forwarding letter dated 27-2-1973 (at page 85 of the paper book). Para.7 of the brochure deals with the Park, which reads as follows:-- The Main Park in an area of 132 acres, named as Bagh-e-Ibne Qasim; has been provided with amusement parks, recreational facilities, Restaurants, Refreshment stalls, Ponds, sea-shall shops, Swimming Pools, Lily Ponds, Recky Garden, Formal Garden, Antique shops, Fountains, Telescope Corner, Picnic spots, Band stand, Skating rink, Terrace Garden etc."

The abovequoted para.7 of the brochure indicates that the main park envisaged for K.D.A. Scheme No,5 was the park under reference. The above para.7 provides that the park named as Bagh-e-Ibne Qasim on 132 acres was to have amusement park recreational facilities, restaurants, refreshment stalls, ponds, sea- shall shops, swimming pools, Lily ponds, rocky garden, formal garden, antique shops, fountains, telescope corner, picnic spots, band stand, skating rink, terrace garden etc. Already been referred to hereinabove in para. 2, while narrating the facts. Keeping in view that the Park was to have inter alia restaurants carving out a piece of land, measuring 4851.61 sq. Yards for a revolving restaurant out of the above area of 131 acres of the Park was'in fact in furtherance of the scheme of the Park and not for conversion of the same for commercial purposes. Respondent No,5 has not produced the allotment letter dated 19-7-1976 in favour of M/s Marvi Investments from whom it had purchased the Plot, but in para. 1 of the impugned order dated 9-3-1991 of the Additional Chief Secretary, Government of Sindh, Housing and Town Planning, Local Government and Rural Development Department the purpose for which allotment was made has been stated, as under:- "The present appeal is concerned with Plot No, ST-15 Block 3, Scheme 5, Karachi. This plot was designated a 'STtype of plot and was originally intended for the construction of the revolving restaurant, similar in nature to the London Post Office Tower. The plot had been originally allotted for this purpose to M/s Marvi Investment, but no construction was initiated thereon. The plot was then acquired by the Appellant."

Even in the allotment letter dated 8-4-1990 (at page 127 of the paper book) though the plot has been described as Commercial Plot No,ST-15, but the purpose for which it was allotted has been clarified by stating "revolving restaurant" in the bracket after the number.

10. Even if we were to accept Mr. Farooq H. Naik's contention that factually the Plot was commercialised, it will not improve the case of respondent No,5, because of Articles 40 and 52-A of the Order and para. 3 of Schedule 'Dto the Regulations. It may be observed that clause (4) of Article 40 of the Order provides that if any person desires to use any land for any purpose other than that laid down in the Zonal Plan Scheme notified under clause (3), he may apply to the Authority for permission to do so and the Authority may order a public hearing and give notice to all persons it deems affected. Whereas Article 52-A deals with the framing of the housing scheme which is to include hospitals, schools, colleges, libraries, play-grounds, gardens, parks, community centres, mosques, graveyards. Its clause (2) envisaged that the Authority or the Housing Society may at any time prior to utilisation of any plot reserved for the purpose mentioned in subsection (1), apply to the Commissioner for conversion of such plot any other purpose. Clause (3) thereof lays down that on receipt of an application under subsection (2), the Commissioner shall invite objections from the general public through a notice published in one English and one vernacular leading daily newspaper and the objections, if any, shall be submitted to the Commissioner within 30 days from the date of the publication of the notice. Whereas clause (4) provides that the Commissioner shall after considering the objections received under subsection (3) and hearing such persons as he may consider necessary, forward his recommendations alongwith the application and other connected papers to Government for orders. It may also be observed that para.3 of Schedule 'Dto Regulations prohibits the change of land use or conversion of amenity, utility and other plots without following the procedure contained therein which envisages inviting of public .Objections through the newspapers as above and hearing of the objections. The Regulations have been held by this Court to have statutory force in the case of Multiline Associates v. Ardeshir Cowasjee and others (supra). Reference may also be made to the judgment of this Court in the case of Abdul Razak v. Karachi Building Control Authority (supra), in which this Court with reference to above Article 52-A of the Order has observed that "We may point out that even under the Order, the K.D.A. Is not authorised to change the use of any amenity plot without inviting objections and without obtaining the order of the Government".

11. Admittedly, no objections were invited in terms of the above provisions of the Order and the Regulations and, therefore, per se the alleged conversion of the plot for commercial purpose is illegal and contrary to the layout plan of the K.D.A. Scheme No,5. The above illegality could not have been rectified by order dated 9-3-1991 when respondent No,5's first building plan was approved or by second order dated 24-6-1992, when the revised plan was accorded approval. It may be observed that omission on the part of the appellants to assail the latter order in Constitution Petition referred to by the learned Division Bench in the judgment under appeal is of no consequence as the High Court was to decide order issue, namely, whether the approval of the plan for a high-rise building on the plot was legal or not. It may be pertinent to refer to respondent No,5's letter dated 7-6-1992, whereby it submitted revised plan which indicates the type of construction which it intended to raise on the plot. The relevant portion of which reads as follows:-- "OCEAN VIEW PLAZA REVOLVING RESTAURANT ST. 15, BLOCK-3, SCHEME-5, CLIFTON, KARACHI Plot Ration allowed is 1:6 with C.O.S. Of 20 ft. Be left all around the proposed building, (according to judgment given by Addl. Chief Secretary H.T.P. Letter No,PS/Secy/HTP/843, dated, 9-3-1991)Proposed Revised Building Plans which are based on 1:6 plot ratio with 20 feet C.O.S. Total area of the plot =4851.66 Sq. Yds=43665.00 Sq. Ft. Total area of the plot =4851.66 Sq. Yds =43665.00 Sq. Ft.

Total allowed C.O.V. Area is six times (1:6) of the total area. The plot=43665.00 Sq. Ft. x 6=261990 Sq. Ft.Proposed covered area on ground floor=28545.00 Sq. Ft. Proposed covered area from 1 Floor to 14 Floor =226415.56 Sq.Ft.

After leaving 20 feet C.O.S. Left all around the proposed building (213 ft x 205 ft)Proposed covered area of Revolving Restaurant =28227.35 Sq.Ft. =213 ft-40 ft =173 ft & 205 ft-40 ft =165 ft Proposed Covered area of Mech.Room=3871.35 Sq.Ft.

Total allowed COV area after leaving 20 feet C.O.S. On ground floor=173ftx165 ft =28545 Sq. Ft.Total covered area proposed from ground floor to the top floor=261659.26 Sq.Ft.

Total covered area allowed (1:6) =261990 Sq.Ft.

Total covered area proposed on 1:6 plot ratio with 20 ft.

C.O.S.=261659.26 Sq.Ft.

Remaining unutilized area (Proposed) 330.74 Sq.Ft.

The perusal of the abovequoted portion of respondent No,5's letter indicates that total covered area proposed was 261659.26 sq.Ft., out of which 2827.35 sq.Ft. Is intended to be used for revolving restaurant and 3871.35 sq.Ft. For the Mechancial Room for the proposed revolving restaurant. Thus, the total area intended to be used for revolving restaurant is only 6698.70 sq.Ft. In other words, though the plot was carved out for a revolving restaurant, respondent No,5 intends to use about 2.56% of the prospsed construction for revolving restaurant. In other words, the object for which the Plot was carved out from the Park land, measuring 132 acres is patently defeated. In this behalf reference may be made to the Director- General's note dated 25-6-1992 on respondent No,5's application for approval of the revised plan, referred to hereinabove in para. 4, wherein he pointed out that only a towner with revolving restaurant was permissible and there would be criticism from public and definitely there would be Court case in respect of the Plot on account of the approval of the revised plan. The Sub-Committee constituted to examine the high-rise buildings comprising technical experts/public representatives opposed (except the representatives of ABAD) the construction of high-rise building on the Plot on the ground that the Plot was allotted for a revolving restaurant and the original scheme envisaged that whole of the sea front of Bagh- e-lbne Qasim would be free of any obstruction/structure/building for providing a clear view of the sea. In spite of the above legal position and opposition respondent No,5 managed to obtain the approval from the then Chief Minister of Sindh which is evident from appellant No,l's letter dated 18-8-1993 quoted hereinabove in para. 5.

We are, therefore, of the view that factually the plot was not carved out for commercial use for raising a high-rise building, but it was intended to be used for a revolving restaurant as an attraction for the visitors to the Park. In this view of the matter, respondent No,5 neither on factual plane nor on legal basis, can raise a high-rise building to be used for commercial-cum-residential purpose.

12. Adverting to the question of locus standi of the appellants, we may observe that the Clifton beach is a place in Karachi, which is not only visited by the Karach tes, but generally people who are on short visit either from other parts of the country or from abroad also visit Clifton beach as it is a well-established place of public recreation since before the partition of India. The title of the memo. Of appeal indicates that most of the appellants reside in close proximity of the Park and, therefore, it cannot be urged that they have no locus standi to file the above Constitution petition. In our view, because of the location of the Park as highlighted hereinabove even a resident of a distant area like Layari Quarters could have filed the above Constitution Petition. In this regard, reference may be made to para. 15 of the judgment in the casest th of Mst. Sardar Begum Farougui and 6 others v. Rashid Khatoon and 2 others (1990 CLC 83 relevant at p.91) rendered by a Division Bench of the High Court of Sindh to which one of us (Ajmal Mian, CJ) was a party and the author of the judgment, which reads as follows: "15. Apparently the instant case falls within the category of public litigation as the public-at-le is interested to ensure that the constructions are not raised in violation of the building bye-laws and the Ordinance by misusing a status quo order of a Court. The intervention by this Court will discourage the aforesaid illegal practice obtaining in Karachi."

The concept of locus standi has undergone material change in case of public interest litigation. Reference may be made to the judgment of this Court in the case of Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693) in which a direct Constitution petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as the Constitution) was filed by some public spirited persons assailing construction of a grid station by the WAPDA in a thickly populated area. The above Constitution Petition was opposed by the counsel, who appeared on behalf of the WAPDA inter alia on the ground that no violation of the Fundamental Rights was involved. The above contention was repelled as under:- "Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word lifeis very significant as it covers all facets of human existence. The word 'lifehas not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and Constitutionally. For the purposes of present controversy suffice to say that a person is entitled to protection of law from being exposed to hazards of electromagnetic fields or any other such hazards which may be due to installation and construction of any grid station, and factory, power station or such like installations.

The Constitutional Law in America provides an extensive and wide meaning to the word lifewhich includes all such rights which are necessary and essential for leading a free, proper, comfortable and clean life. The requirement of acquiring knowledge, to establish home, the freedoms as contemplated by the Constitution, the personal rights and their enjoyment are nothing but part of life. A person is entitled to enjoy, his personal rights and to be protected from encroachments on such personal rights, freedom and liberties. Any action taken which may create hazards of life will be encroaching upon the personal rights of a citizen to enjoy the life according to law. In the present case this is the complaint the petitioners have made. In our view the word lifeconstitutionally is so wide that the danger and encroachment complained of would impinge fundamental right of a citizen. In this view of the matter the petition is maintainable."

12. In our view, the appellants have the right to use the Park with all amenities as was envisaged under the approved K.D.A. Scheme No,5. The use of the Park involves enjoyment of life which is covered by the word life employed in Article 9 of the Constitution as interpreted by this Court in the aboverquoted extract from the judgment in the case of Ms. Shehla Zia and others v. WAPDA (supra). The appellants, therefore, have the right to ensure that the official respondents do not grant approval of a plan in respect of the Plot which may be violative of the provision of the Order and the Regtrations and which may impinge on their right of enjoyment of life.

Reference may also be made to the treatise Judicial Review of Administrative Action (Fifth Edition) by de Smith, Woolf & Jowell relied upon by Mr. Naim-ur-Rehman, wherein the authors have summarised the concept of locus standi in the context of 'sufficient interestas under:-- "The general approach can be summarised as follows:--

(1) 'Sufficient interesthas to receive a generous interpretation. It has to be treated as a broad and flexible test.

(2) Only issues as to standing where the answer is obvious should be resolved on the application for leave.

In other cases lack of standing should not prevent leave being granted.

(3) Issues as to standing at the leave stage do not depend on the remedy which is then being claimed.

(4) If the applicant has a special expertise in the subject-matter of the application that will be a factor in establishing sufficient interest. This applies \\tether the applicant is an individual or some type of association. The fact that the applicant's responsibility in relation to the subject of the application is recognised by statute is a strong indication of sufficient interest.

(5) A great variety of factors are capable of qualifying as sufficient interest. They are not confined to property or financial or other legal interests. They can include civic (or community) environmental and cultural interests. The interests can be future or contingent.

(6) The gravity of the issue which is the subject of the application is a factor taken into account in determining the outcome of questions of standing. The more serious the issue at stake the less significance will be attached to arguments based on the applicant's alleged lack of standing.

(7) In deciding what, if any, remedy to grant as a matter of discretion, the Court will take into account the extent of the applicant's interest. At this stage different remedies may require a different involvement by the applicant.

The abovequoted passage from the well-known treatise indicates that the concept of locus standi has been whittled down inasmuch as the expression "sufficient interest", inter alia, includes civic or (community) environmental and cultural interests.

13. We may also refer to the following judgments of this Court in which the concept of locus standi has been dilated upon in relation to a Constitution petition, inter alia, it has been held that for maintaining a proceeding in writ jurisdiction, it is not necessary that a writ petitioner should have a right in the strict juristic sense, but it is enough if he discloses that he had a personal interest in the performance of the legal duty, which if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise:--

(i) Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1969 SC 223).

(ii) Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416).

(iii) Mrs. Benazir Bhutto and another v. Federation of Pakistan and another (PLD 1989 SC 66).

(iv) Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473).

(v) Al-Jehan Trust through Raeesul Mujahideen Habib-ul-Wahabb-ulKhairi and others v. Federation of Pakistan and others (PLD 1996 SC 324).

(iv) Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliament Affairs, Islamabad and others (PLD 1998 SC 161).

(vii) Mohtarma Benazir Bhutto and another v. President of Pakistan and others (PLD 1998 SC 388).

However. Mr. Farooq H. Naik has referred the case of Islamic Republic of Pakistan v. Muhammad Saeed (PLD 1961 SC 192), in which this Court with reference to Article 170 of the late Constitution of Pakistan, 1956 observed that in order to entitle a person to ask for the performance of any public duty by a mandamus, it is necessary for him to show that he has some particular ground for claiming such performance, apart from the fact that he is interested in the performance of such a duty as a member of a class of persons, all of whom are equally interested therein.

The above case has no application to the present case. The appellants are entitled to a declaration in terms of sub-paragraph (ii) of paragraph (a) of clause (1) of Article 199 of the Constitution that the approval of the building plan of respondent No,5 in respect of the Plot is without lawful authority and of no legal effect in view of the violation of Articles 40 and 52-A of the Order read F with para.3 of Schedule 'Dto the Regulations. As a consequential relief, the appellants are also entitled to seek removal of the unauthorised structure from the Plot. Even otherwise, the appellants have sufficient interest to ensure that the Plot should not be used for any other purpose than for which it was carved out pursuant of K.D.A.

Scheme No,5.

14. Reverting to the question of laches, it may be observed that Mr. Farooq H. Naik has referred to the following judgments in support of his contention that the learned Division Bench was justified in non- suiting the appellants on the above ground:

(1) The Chairman, District Screening Committee, Lahore and another v. Sharif Ahmad Hashmi (PLD 1976 SC 258)

(2) Fatima Bibi and others v. Settlement Authorities through Chief Settlement and Rehabilitation Commissioner and others (1981 SCM R 740)

(3) Sher Brothers Transport Co. Ltd., Lyallpur v. District Magistrate/Collector, Lyallpur and others (1986 SCM R 1090), and

(4) Wasi Ahmed Rizvi v. Federation of Pakistan PLD 1982 SC 20.

In the first case, this Court while dilating upon the question of laches made the following observation: "No hard and fast rule can be laid down for condonation of delay and the question of sufficiency or otherwise of the cause is to be examined in the light of facts of each case. There have been cases as happened in the case of Abdul Hamid where eight yearsdelay was overlooked. On the other hand there are cases in which few months delay was treated to be uncondonable. The principle, however, is well- settled that Courts of Equity have always refused aid to enforce state claims or demands."

In the second case this Court declined a petition for leave to appeal against the judgment of the Lahore High Court dismissing a writ petition on the ground of laches of five years.

In the third case, this Court declined a petition for leave to appeal against the judgment of the Lahore High Court dismissing a writ petition on the ground that the same was filed after the delay of five years.

In the fourth case, this Court while dilating upon the question of laches had observed that the Courts of Equity in England and the Courts of this country have while deciding upon discretionary reliefs, recognised, applied and enforced as a measure of their practice and procedure the principles of laches.

On the other hand, Mr. Naim-ur-Rehman has referred the judgment of this Court in the case of Pakistan Post Office v. Settlement Commissioner and others (1987 SCM R 1119), whereby the judgment of the Peshawar High Court dismissing a Constitution Petition on the ground of laches was set aside and the following observation was made:-- "We have heard both the learned counsel at some length. There is considerable case-law on the question of laches ranging from dismissal of a writ petition on ground of delay of few months to condonation of laches for over a decade. No hard and fast rules have been laid down in this behalf. There is no law of limitation which may directly apply to the institution of writ petitions and their dismissal on ground of limitation. Such position in this field of law would undoubtedly place any lawyer in a state of uncertainty what to talk of the litigant public. It would be rare that in ordinary practice such like delays would be met in the memorandum of writ petition as is, the requirement regarding the statute of limitation; whereunder when the matter is beyond limitation an application under section 5, therefore, is made of applicable. An occasion to meet the point of laches in writ petition arises when a specific plea is taken by the opposite- party in a written statement. When no such plea is taken or when taken, adequate time and opportunity is not afforded to the writ petitioner to meet it, the High Court would not be justified in dismissing the writ petition on the assumption that no explanation is offered by the counsel arguing the case. This is what has happened in this case. The counsel was ordered to explain the delay only at the hearing of the writ petition.

His failure to do so without having had enough time and opportunity to .Get instructions from the Government Departments concerned, could not be treated as reason for dismissal of writ petition on ground of laches."

In our view, laches per se is not a bar to a Constitutional petition. There is a marked distinction between delay in filing of a legal proceedings within the period specified in an Article of the Schedule to the Limitation Act, 1908 and the delay in filing of a Constitution 4 petition for which no statutory period is provided for. In the former case delay of each day is to be explained by furnishing sufficient cause for seeking condonation of delay under section 5 of the Limitation Act in filing of a legal proceedings after the expiry of the statutory period. Whereas, in the latter case, the delay or the question of laches is to be examined on equitable principles for the reason that grant of Constitutional relief is a discretionary relief and the Court may decline to press into service its Constitutional jurisdiction if it would be inequitable keeping in view the conduct of a petitioner. The question of delay or laches is to be considered with reference to the facts of each case. Delay/laches of several years can be overlooked in a Constitutional petition if the facts of the case and dictates of justice so warrant as pointed out by this Court in the case of The Chairman, District Screening Committee, Lahore and another v. Sharif Ahmad Hashmi (PLD 1976 SC 258) (supra), or the delay/laches of few months may be fatal to a Constitutional petition.

15. Having dealt with the legal position on the question of laches, we may revert to the facts of the present case in order to determine, whether there has been any laches on the part of the appellants as to warrant dismissal of their above Constitution Petition. From the facts of the case, it is evident that appellant No,1 opposed the approval of the plan of the high-rise building on the Plot, inter alia, through his letters dated 15-6-1992 and 18-8-1993 besides his articles published in daily English newspaper 'DawnKarachi of 18-6- 1993 and 30-7-1993. The Sub-Committee constituted by the Committee appointed by the Chief Minister to examine construction of high-rise buildings also opposed respondent No,5's then proposed high-rise building. In spite of this, according to respondent No,5, it started construction work on the Plot in June 1993, whereas the above Constitution Petition was filed on 18-12-1993. In our view, there is no laches of the nature which could warrant dismissal of the above Constitution Petition on the above ground. Respondent No, 5 knew from the very inception when it obtained the approval of his first building plan that the Plot was carved, out for construction of a revolving restaurant and not for a high-rise building comprising commercial-cum-residential complex and that it was opposed by the public spirited people. The same was the position when it submitted his revised building plan. However, it managed and manoeuvered approval of the plan not through the proper channel but because of the influence of the then Chief Minister. In the above factual background, it is not open to respondent No,5 to raise the plea of laches or acquiesence. The above plea is only available to a respondent who acts bona fide under the belief that what he is doing is legal and proper and the same cannot be invoked in aid by a respondent who knew from the very inception that what he was doing was on account of his own manipulation contrary to law.

16. We may now take up the plea that the carving out of the Plot for commercial purposes out of the land reserved for the. Park has not been challenged by the appellants in their Constitution Petition and, therefore, no exception can be taken to raising of a high-rise building to be used commercial cum residential. It may be observed that this is not factually correct. The appellants in para.19 of their memo. Of appeal have assailed the conversion of the Plot into commercial. The above para.19 reads, as follows:-- "19. That it will be noted that the change of plot use from amenity to commercial is contrary not only to Article 52-A of the K.D.A. Order No,5 of 1957, but also contrary to Article 3 of Schedule D Part II of the Karachi Town Planning and Building Regulations, 1979."

It may again be pointed out that factually the Plot was carved out from the Park land in furtherance of the object of the Park for a revolving restaurant and not for raising of a high-rise building of the nature under reference. The above contention of Mr. Naik is also untenable.

17. Adverting to Mr. Farooq H. Naik's submission that respondent No,5 is a bona fide purchaser of the Plot from M/s Marvi Investments and as they have already raised construction during the period which had elapsed from the date of start of construction in June 1993 to 18-1-1994 when an ad interim prohibitory injunction was granted by the High Court and from 1-10-1995 to 25-5-1996, when no prohibitory order was in the field after the dismissal of the above Constitution Petition till the grant of ad interim injunction by this Court. And thus, the Constitution Petition has been rightly dismissed by the High Court as the principle of locus poenitentie is attracted to the present case.

It may be observed that section 20 of the West Pakistan General Clauses Act (Corresponding section in General Clauses Act 1897 is section 21) lays down whereby any West Pakistan Act or Regulation a power to issue notifications, orders, rules, schemes, form or bye-law is conferred then that power includes a power, exercisiable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, convert or rescind any notifications, orders, rules, or bye-laws so issued. Similar to the power contained under the above provisions of the Act, under the principle of locus poenitentiae, the authority concerned has the power of receding its order till a decisive step is taken. In this regard reference may be made to the case of Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullh Farukhi (PLD 1969 SC 407) in which the following observation has been made in respect of the above principle: "There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae, i.e, the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance therefor certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights."

Reference may also, be made to the case of The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin (PLD 1992 SC ,207), in which this Court had commented upon the above principle as under:-- "The principle of locus poentitentiae was invoked by the learned Tribunal in aid of the respondent. Having gone through the facts of the case, we have come to the conclusion that this principle is not attracted in the present case. Additionally, under section 21 of the General Clauses Act, the authority which can pass an order, is entitled to vary, amend, add to or to rescind that order. The order under which the payment was made to the respondent had no sanction of law. Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order."

In our view, the principle of locus poenitentiae is not attracted to the present case, inter alia, for the reasons, firstly, the appellants were not the authority which had approved respondent No,5's building plan in violation of the above provisions of the Order and the Regulations. Secondly, since the above approval was in contravention of the provisiosn of law, the above illegal action/order cannot be treated as irrevocable or past and closed transaction. It may also be stated that as the order of approval of the plan is illegal, perpetual rights cannot be gained on the basis of the same. Thirdly, respondent No,5 was put to notice before it started its construction work to the effect that the approval obtained by it for a high-rise building is in violation of the provisions of the Order and the Regulations and determinental to the interest of the public at large. The above contention, therefore, also fails.

18. We may now take up Mr. Farooq H. Naik's contention that since a number of high-rise buildings had been constructed even on the residential plots, singling out of respondent No,5 is violative of Article 25 of the Constitution, it may be mentioned that the above contention is also not tenable. A high-rise building constructed on a residential plot cannot be equated with a high-rise building to be constructed on a portion of the park land carved out for a revolving restaurant which has direct nexus with the object of the Park.

19. It was also contended by Mr. Farooq H. Naik that third party's rights have been created by booking certain points of the proposed building. In support of his submission he has relied upon the case of State of M.P. And others, etc. Etc. v. Nandlal Jaiswal and others, etc. Etc. (AIR 1987 SC 251) particularly on the following observation:- "Here, obviously there was considerable delay on the part of the petitioners in filing the writ petition and in the intervening period, respondents Nos. 5 to 11 acquired land, constructed distillery buildings, purchased plant and machinery and spent considerable time, money and energy towards setting up the distilleries.

These circumstances would, in our opinion, be sufficient to disentitle the petitioners to relief under Article 226 of the Constitution. The petitioners, however, contended that they were not aware of the policy decision, dated 30th December, 1984 nor had they any knowledge of the fact that the right to construct distilleries and to manufacture and supply wholesale country liquor from such distilleries was granted to the existing contractors and it was only when they came to know about this that they immediately proceeded to file the writ petitions. Now, it is difficult to believe that the petitioners were not aware of the policy decision, dated 30th December 1984."

The above case has no application to the facts of the present case. Firstly, there is nothing on record to show that factually any third party has acquired interest. Secondly, in the above report respondents Nos.5 to 11 acquired land, constructed distillery buildings, purchased plant and machinery and spent considerable time, money and energy towards setting up the distilleries. The writ petitioners did not raise any objections, which is not the case in the instant case. In the present case, the proposed building has not been completed but some construction work has been carried out despite protest of the public. Thirdly, the major part of the above portion of the proposed building has been constructed after the filing of the above Constitution petition and, therefore, the doctrine of "lis pendens" is applicable to the case in hand i.e, that the third party will be bound by the result of the litigation. In this regard reference may be made to the following cases:--

(i) Karam Elahi v. The Settlement and Rehabilitation Commissioner (Lands), Lahore and 2 others (1976 SCM R 143).

In which during the pendency of the litigation in respect of evacuee land the same was transferred to another person. Eventually, the transferred land was cancelled and it was held that the petitioner in that case having purchased the land during pendency of the writ by the respondent was hit by the doctrine of lis pendens and was bound by ultimate outcome of decision.

(ii) Messrs Aman Enterprises, Sialkot v. Messrs Rahim Industries Pakistan Ltd., Sialkot and another (PLD 1993 SC 292).

In the above case, this Court while setting aside the High Court judgment declining the relief of specific performance on the ground that the suit property was sold to a third party, held that rule of lis pendens was fully applicable to the subsequent vendee as, if he had made inquiries from the establishment to which property in question originally belonged and with whose approval it could have been sold he would have come to know that agreement of sale existed between appellant/first-vendee and the respondent- vendor and, thus, the appellant/first-vendee was entitled to a decree for specific performance of the agreement to sale.

The above reports are fully applicable to the present case. The third parties may have-cause of action against respondent No,5, but they cannot defeat the right of the public-at-large.

19. Before concluding the above judgment, we may refer to the conflict of views between the two judgments of this Court in the case of Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512) (supra) and Multiline Associates v. Ardeshir Cowasjee and others (PLD 1995 SC 423) (also reported in 1995 SCM R 362) (supra) noticed in the leave granting order which is to be resolved. The former case was decided on 31-3-1994 by a Bench comprising Ajaml Mian, Sajjad Ali Shah and Saleem Akhtar, JJ.

(as then they were), whereas in the latter case judgment was rendered on 22-1-1995 by a Bench comprising Sajjad Ali Shah, C.J., Mir Hazar Khan Khoso and Muhammad Munir Khan, JJ. (as then they were).

It appears that while deciding the latter case notice of the above earlier judgment of Abdul Razak was not taken though, according to Mr. Naimur Rehman, the same was cited. It may be pointed out that a Bench of the same number of Judges of the same High Court, or of the Supreme Court, cannot deviate from the view of an earlier Bench as rightly has been held in the case of Multiline Associates v. Ardsher Cowasjee and others (PLD 1995 SC 423) (supra) in relation to the High Court.

There seems to be conflict of views in the following portions of the above two judgments.

(a) The relevant extracts from the judgment in the case of Abdul. Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512).

"17. We are inclined to concur with the above conclusion of the High Court. We may observe that the discretion given to the Authority under section 19 of the Ordinance or under Regulations Nos. 20 and 25 is subject to the well-settled principle of legal jurisprudence that discretion is to be exercised fairly and reasonably and not at the cost or prejudice of third parties. We may also point out that there is marked distinction between a criminal liability under section 19 of the Ordinance and a civil liability under the Regulations to rectify irregularity/breaches. The Authority may compound criminal liability but it cannot regularise a breach of the Regulations which is of the nature which has changed the complexion or character of the structure, which was originally intended to be erected or of the plot. In such cases, it can be said that the Authority has no discretion in fact and law. The plot. In dispute was intended to have residential bungalow, it was not earmarked as flatssite. It is a matter of common knowledge that in the various K.D.A. Schemes the plots are categorised as residential plots, flatssites, commercial plots and industrial plots.

18. It may be stated that in spite of presence of the above unambiguous Article in the Order the successive Provincial Governments overlooked the above Article and converted amenity plots into commercial or residential plots and thereby denied to the residents of Karachi inter alia parks and play grounds which contributed towards environmental pollution in the city. A tendency has also developed to covert the use of a residential plot into commercial or instead of constructing residential units in the form of bungalows to erect flats.

19-A The Authority though has allegedly regularised the present construction through its letter dated 12-2- 1991 but has not stated any reason for doing so. It has not adverted to the question, whether the irregularities/breaches were of the nature, which could have been regularized. The High Court in the judgment under appeal has highligted that the breaches of the Regulations were such which are prejudicial to safe and hygienic conditions of living for the citizens and detrimental to health. In this 'view of the matter, the above regulation is in violation of the spirit of the Ordinance and the Regulations. The power to regularise contained in the Ordinance and the Regulations is intended and designed to be exercised when irregularity is of the nature which does not change the complexion of character of the original proposed construction nor it adversely affects third partiesrights/interests.

20. From-the abovequoted 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 residential, business and industrial etc. So that each part could perform its functions with minimum cost and conflict. The paramount object of modern city planning seems to be to ensure maximum comforts for the residents of the city by providing maximum facilities referred to hereinabove. It must, therefore, follow that a public functionary entrusted with the work to achieve the above objective cannot act in a manner, which may defeat the above objective. Deviation from the planned scheme will naturally result in discomfort and inconvenience to others, Respondent No,3 in the abvoequoted paras. 15 to 17 of the memo. Of petition has rightly highlighted that the Society in which the plot is situated was planned on the -assumption that a 273 sq: yards would have normal residential units and not flats.

21. It may be mentioned that framing of a housing scheme does not mean simpliciter, levelling of land and carving out of plots, but it also involves working out approximate requirements of water, electricity, gas, sewerage lines, streets and roads etc. If a housing scheme is framed on the assumption that it will have residential units 1 + 1. But factually the allottees of the plots are allowed to raise multi-stroreyed buildings having flats, the above public utility services will fall short of requirements, with the result that everyone living in the aforesaid scheme will suffer. This is what has happened in Karachi. Without any planning and without expending the provisions of the above items of public utility services, the people were allowed to erect multi-storeyed buildings having shops and flats. In consequence thereof everyone living in Karachi is suffering. There is scarcity of water, some people even do not get drinking water. The above other items of the public utility services are short of demand. Roads and streets are normally flooded with filthy and stinking water on account of choking and overflowing of sewerage lines. To reduce the miseries of most of the Karachiites, it is imperative on the public functionaries like the Authority to ensure the adherence to the Regulations. However, it may be clarified that it may not be understood that once a scheme can be made for the good of the people at large, but not for the benefit of an individual for favouring him at the cost of other people."

(b) The relevant extracts from the judgment in the case of Multiline Associates v. Ardeshir Cowasjee and others (PLD 1995 SC 423).

"44. In the instant case, there appears to be no violation of the Regulations when the builders have got their building plan regaularized after composition and have paid requisite fees for additional floors and have obtained no objection certificate. Nor only this but counsel for K.B.C.A. And K.D.A. 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.

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-rise 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 Freer Town Quarters or in the 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 a violation of the Regulations particularly when counsel for K.B.C.A. 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."

20. The perusal of the abvoequoted extracts from the above judgments indicates that in the case of Abdul Razak, this Court has held that the power to regularise contained in the Ordinance and the Regulations is intended and designed to be exercised when irregularity of the nature which does not change the complexion or character of the original proposed construction nor it adversely affects third partiesrights/interests. It has been further held that the paramount object of modern city planning seems to be to ensure maximum comforts for the residents of the city by providing maximum facilities and that a public functionary entrusted with the work to achieve the above objective cannot act in a manner, which may defeat the above objective. It has been further held that deviation from the planned scheme will naturally result in discomfort and inconvenience to others. It has also been held that framing of a housing scheme does not mean simpliciter, leveling of land and carving out of plots, but is also involves working out approximate requirement of water, electricity, gas, sewerage lines, streets and roads etc. And if a housing scheme is framed on the assumption that it will have residential units 1 + 1 but factually the allottees of the plots are allowed to raise multi-storeyed buildings having flats, the above public utility services will fall short of requirements, with the result that everyone living in the aforesaid scheme will suffer. It has also been held that to reduce the miseries of most of the Karachiites, it is imperative on the public functionaries like the Authority to ensure adherence to the Regulations. However, it has also been clarified that it may not be understood that once a scheme is framed, no alterations can be made.

Alterations in a scheme can be made for the good of the people at large, but not for the benefit of an individual for favouring him at the cost of other people.

On the contrary, in the judgment in the case of Multiline Associates (supra) somewhat different view has been taken. It has been held that if the builders have got their building plan regularise after composition and have paid requisite fees for additional floors and have obtained no objection certificate, there is no violation of the Regulations. It has been further held 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 has been also held that it is imperative upon the Court while exercising jurisdiction in a Constitution Petition to see that discretion is to he exercised in such a way that mischief and chaos is prevented particularly when construction of high-rise 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.

21. The above conclusion recorded in the case of Multiline Associates v. Ardeshir Cowasjee and others (PLD 1995 SC 423) (supra) runs contrary to what has been held in the judgment of this Court in the case of Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512) (supra) highlighted hereinabove. With due defence, we are unable to subscribe to the above view found favour in the case of Multiline Associates v. Ardeshir Cowasjee and others (PLD 1995 SC 423). The legal position, enunciated, inter alia, in the abovequoted extracts from the judgment in the case of Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512) is in consonance with the provisions of the Karachi Development Authority Order, 1957, Sindh Building Control Ordinance, 1979, and the Building Regulations, 1979. The power to regularise contained in the Ordinance and the Regulations is intended and designed to be exercised when irregularity is of the nature which does not change the complexion or character of the originally proposed construction. The Government or the Authority under the Ordinance does not enjoy unbridled or unfettered power to compound each and every breach of the Regulations. The Regulations should be applied for the benefit of the public and not for favouring an individual. Simpliciter the factum, that on account of termendous increase in 'the population in Karachi the situation demands raising of high-rise buildings, will not justify the conversion of residential plots originally intended to be used for building ground-plus-one and allowing the raising of high-rise buildings thereon without providing for required water, electricity, gas, sewerage lines. Streets and roads etc. We may observe that even when the conversion of a residential plot on the main roads into a commercial plot is warranted on account of`change in the situation, the legal requirement of public notice, inter alia, as envisaged by Article 40 of the K.D.A. Order (if applicable) and para.3 of Schedule Dto the Regulations is to be complied with. Secondly, simpliciter conversion of a residential plot into commercial does warrant granting of permission for a high-rise building having 17/18 floors, but the Government or the Authority is under obligation to keep in view the quantum of water, electricity, gas sewerage lines, streets and roads etc., available in the locality involved, and efforts should be made to allow minimum floors, so that the same may cause less inconvenience and discomfort to the inhabitants of the locality involved.

The Courts while considering question of ad interim or final relief in a case in which deviation of the above nature is allowed, or breach of the approved plan is complained, should keep in mipd above factors. They should also keep in view the following observation made in the judgment of this Court in the case of Mst.

Zubaida A. Sattar and others v. Karachi Building Control Authority and others (1999 'SCMR 243 at P/148 para. 7) which reads as follows:-- "7. We may point out that unfortunately it has become common practice in Karachi that some builders obtain approval of plans for raising building Ground-plus-One, but actually they construct multi-storeyed high-rise buildings on the sites to the detriment of the neighbours in the locality concerned as it disturbs the amenities besides creating environmental problems. Such practice is to be deprecated as was pointed out in the judgment of this Court in Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512). It may further be observed that some builders raise unauthorised constructions after obtaining status quo orders from the Courts."

We, therefore, hold that the judgment in the case of Multiline Associates v. Ardsher Coasjee and others (PLD 1995 SC 423) (supra) to the extent of inconsistency to the judgment in the case of Abdul Razak v.

Karachi Building Control Authority and others (PLD 1994 SC 512) (supra) does not reflect the correct legal position and, thus, the same is overruled to that extent.

22. The upshot of the above discussion is that with the above clarifications as to the conflict of views in the above two judgments of this Court, the above appeal stands disposed of in terms of the short order, dated 3-5-1999, which is incorporated as a part of this judgment and which reads, as under:-

ORDER

For the reasons to be recorded later on, the appeal is accepted and the impugned judgment of the learned Division Bench of the High Court is set aside. The Constitution Petition No,D-3501 of 1993 filed by the appellant is allowed and it is declared that the plan approved for the construction of commercial-cum- residential complex by the official respondent is without lawful authority and of no legal effect. It is further declared that no commercial-cum-residential complex can be constructed on the disputed plot but only a revolving restaurant as to be approved by the official respondent can be erected for the benefit of the visitors to the park.

2. That in case the respondent No,5, namely, M/s Pearl Builders (Pvt) Limited is interested in constructing a revolving restaurant, it will submit a new plan of the same for approval of the official respondent within a period of sixty days from today.

3 . After the approval of the plan, the structure already constructed will be removed except the portion which can be utilised for the construction of revolving restaurant with approval of the official respondent concerned.

4. That in case the respondent No,5 fails to submit any plan for approval in respect of revolving restaurant within the above stipulated period of sixty days, the official respondent concerned shall demolish the existing structure at the cost of above respondent No,5.

5. There will be no order as to costs.