AJMAL MIAN, C.J.---The above two appeals have been filed with the leave of this Court and the same are disposed of by the following short order, dated 3-5-1999:-- "ORDER For the reasons to be recorded later on, both the appeals are dismissed and the judgment of the learned Division Bench of the High Court is maintained with the clarification that the undertaking given by the appellant/builder in Civil Appeal No,756 of 1998 that he would not construct any additional floor beyond the approved plan, namely, basement + ground-floor + 1/3rd loft + 4 upper storeys in incorporated as a part of this judgment.
(2) That the builder i.e, respondent No,19 Messrs Excell Builders shall remove the portion of the structure of Glass Towers constructed along and facing the Clifton Road which may obstruct the future expansion of the road to the proposed width of 150 feet as ordered by the learned Division Bench of the High Court within a period of three months from today, failing which. The official respondents shall carry out the demolition work immediately on the expiry of the above period of three months at the cost of the builder with police aid, if necessary.
(3) That after removal of the abovestructure from the building site, it will be open to the builder to apply to the official respondents for using the open space for beautifying the building subject to the undertaking that the same would be removed within a period of fifteen days on receipt of the notice, failing which the official respondent concerned shall remove the same without police aid, if necessary.
(4) The appeals are disposed as above with no order as to costs."
2. We intend to record the reasons thereof. The brief facts of the case are that Plot No,2, FT-3, measuring 4524 sq. Yards (hereinafter referred to as the plot) was a residential plot situated on main Clifton Road in Frere Town Quarters, Karachi, which was a residential area. It seems that the Governing Body of the Karachi Development Authority Order, 1957 (President's Order No,5 of 1957), hereinafter referred to as the Order, (which superseded Karachi Improvement Trust Act, 1950) by Resolution No,220, dated 11-5-1980, resolved that approval be accorded for commercialization of the residential plot situated in the various Karachi housing schemes on the roads mentioned therein against payment of conversion charges at the rates stated therein. The above resolution included Old Nazimabad, North Nazimabad, Scheme No,16 (F.B.) Area, Scheme No,24 Gulshan-e- lqbal, Scheme No,19, Scheme No,5 Clifton, Drigh Colony, Malir Colony, Malir Extension, Korangi/Landhi, Aurangi, Qasba, North Karachi, PECHS/KCHS Union/Other Societies and Shahrah- eFaisal (Main Road). It may be pointed out that the above Resolution also covered Scheme No,5 (Clifton) under Item No,6, which reads as follows:--- "(6) SCHEME NO.5.
(i) Commercialisation of the plots on main road Clifton be allowed.
(ii) Commercialisation of Plots No,T Rs,400 per 17/A and B Block-7 adjacent to sq.Yd." Existing Commercial Area.
It appears that pursuant to the above Resolution of the Karachi Development Authority (KDA) a number of plots on the main Clifton Road (Sir Abdullah Haroon Road) were commercialised from time to time and multi-storey commercial buildings were raised thereon.
It seems that the partners of Messrs Excell Builders, who are appellants alongwith the Firm in Civil Appeal No,756 of 1998 and are respondents in Civil Appeal No,757 of 1998, (hereinafter referred to as the builders) got the plot commercialised in July 1995 from the Karachi Metropolitan Corporation on payment of conversion charges of Rs,2,28,38,400. After that the builders submitted a plan for construction of a commercial building by the name of "Glass Towers" comprising basement + ground + 1/3rd loft + 4 upper floors which was approved on or about 21-8-1995 by the Karachi Building Control Authority (hereinafter referred to as the KBCA) which has been incorporated under the Sindh Buildings Control Ordinance, 1979 (Sindh Ordinance No,V of 1979)
(hereinafter referred to as the Ordinance) which is one of the respondents in the above appeals, approved the same. However, subsequently, the builders approached the then Chief Minister of Sindh and sought permission for construction of a high-rise building, consisting of basement + ground + Mezzanine + 2 parking floors + 14 upper floors. It appears that the then Chief Minister by his order dated 19-1-1996 acceded to the buildersabove request. After that the builders started construction work and while it was still in the initial stages K.B.C.A's. Officials concerned discovered deviation from the approved plan, whereupon notices were issued for demolition. But before any demolition work could be carried out, the builders on 25-1-1996 filed Suit No,55 of 1996 in the High Court of Sindh against Karachi Metropolitan Corporation (i.e, respondent No,18) and K.B.C.A., and obtained an ad interim order to the effect "No adverse action will be taken against the plaintiff" and continued with the construction work.
3. It appears that while the above suit was pending respondents Nos. 1 to 11, who are residents of the localities mentioned in the title of the appeal, which includes Clifton area (hereinafter referred to as the residents) filed Constitution Petition No,D-1280 of 1996, in which it was averred that the Frere Town Quarters was essentially a residential area where construction of ground + one was allowed and that commercialisation could only be effected after complying with Articles 40 and 52-A of the Order and Schedule 'Dto the Karachi Buildings and Town Planning Regulations, 1979 (hereinafter referred to as the Regulations). It was further averred that the approval of the plan was accorded contrary to development scheme and without reference to amenities and, infrastructure available in Frere Town Quarters. The various illegalities committed in granting approval to the plan were highlighted including the factum that the cutline of the building should actually be at least 50 feet from the 100 feet wide road in order to achieve the 150 feet road width which was required under Part II of the Regulations as reflected in Part 9, Schedule G at Serial No,30. The residents also obtained on 6-8-1996 an ad interim order restraining the builders from further raising the construction on the plot. It was the case of the builders that by the time above ad interim order was passed by the High Court in the above Constitution Petition the structure of the building was almost completed. Be that as it may, the residents prayed for the following reliefs in the above Constitution Petition:-- "(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.
(b) declaration be given that the cutline of the building on the plot has to be at least 50 feet, from the main road.
(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.
(d) declaration be given that the building being constructed is contrary to Schedule H given in Part II at page 92 of the Regulations.
(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(6) of S.B.C.O. Read with the Regulations.
(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.
(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.
(h) direct respondents No,9, 10, 11 and 13 not to provide any amenities or to create any 3rd party interest in the building known as Glass Towers.
(i) any other relief this Honourable Court deems fit."
The above petition was resisted by the builders on a number of grounds. It was inter alia contended that the residents had no locus standi to maintain the above Constitution Petition as there has not been any violation of any of their personal rights. It was also pleaded that the above Constitution Petition was not maintainable as buildersSuit No,55 of 1996 was then still pending in the High Court. Both the above pleas were repelled by the learned Division Bench.
4. As regards the locus standi the following was held:-- "(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 once 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."
On the above second legal plea of the builders about pending of their suit the High Court concluded as under:-- "(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 is 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 controversial 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 stricto 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).
5. It may be stated that during the arguments the learned Advocate-General Sindh informed the High Court that the Chief Minister had rescinded his order, dated 19-1-1996 allowing the raising of a high-rise building. Therefore, the learned counsel for the builders, after due instructions from his clients, gave an undertaking that they would not construct any additional floor beyond the original approved plan. As regards the merits of the above Constitution Petition, the learned Division Bench agreed with the contention of the learned counsel for the builders that an owner of the land was entitled to use the same for a lawful purpose but pointed out that such right was not unbridled and that it would 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 was earmarked for raising a double storey residential house only and had been leased out on such terms. It was also highlighted that the people choosing to reside in such residential area specially in the city of Karachi, really opt 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. It was further observed that these were valuable rights, too valuable to be sacrificed at the altar of political bribery and expediency or individual greed.
However, the learned Division Bench found that the building was not first building in the area to be converted to commercial use, nor it was the first multi-storey structure, but the above process started in 1980 and 1984. It also did not accept the residentscounsel's submission that K.D.A. Alone could have allowed the convesion. It was pointed out that admittedly the plot belonged to the K.M.C. And under the terms of the lease the K.M.C. Was authorised to permit its conversion. It was also observed that another reason why the conversion of the plot did not now call for any interference was that the plots in the neighbourhood of the plot had also multi-storey buildings.
But the Constitution Petition was allowed to the following extent:- "We, therefore, direct that such portion of the said structure of Glass Towers constructed along 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 purposes of identifying with exactness the portion to be so demolished we direct the respondent No,6 to determine the same on due measurement."
6. The builders as well as the residents being aggrieved filed in this Court C.P.L.A. No,171 of 1998 and C.P.L.A. No,198-K of 1998, respectively, for seeking leave to appeal.
Leave was granted to both the parties by order, dated 18-5-1998, as the learned leave granting Bench was of the view that it was a fit case for grant of leave. An ad interim order was also passed in the following terms:- "In so far as interim relief is concerned, the interim order already granted is modified by the consent of the learned counsel in these terms:--
(1) That the additional construction shall be carried out by the builder in strictly by the plan approved by the K.B.C.A. If during the course of the construction, the K.B.C.A. Find any deviation in violation of the plan, it will be open to take action against the builder in accordance with law after notice to him. It is further directed that until appeal is decided by this Court, the builder shall not part with possession of the premises built on disputed area with further direction that the construction will be entirely at the risk of the builder."
7. Mr. Muhammad Ali Sayeed, Senior Advocate Supreme Court has appeared for the builders in both the appeals, whereas Mr. Naim-ur-Rehman, Advocate Supreme Court represented the residents. K.B.C.A. Was defended byMr. Fazle Ghani, Senior Advocate Supreme Court.
Since Mr. Muhammad Ali Sayeed was not feeling well, he requested that Mr. Muhammad Farogh Nasim, who is not an Advocate of this Court be granted special permission to argue the matter. We have acceded to the above request in terms of the Court order, dated 30-4-1999.
(a) In support of the above Civil Appeal No,756 of 1998, Mr. Muhammad Farogh Nasim submitted that in the Constitution Petition four pleas were raised, namely, (i) illegal conversion of the residential plot into commercial, (ii) violation of approved plan, (iii) violation of the Regulations relating to setback of the building for widening of the road and (iv) overburdening of the amenities on account of construction of multi-storey building in place of ground-plus-one. He pointed out that the builders are aggrieved by the judgment to the extent of ordering demolition of the structure which may allegedly obstructed the future expansion of the Clifton Road to the proposed 150 feet width in front of the building (hereinafter referred to as "Glass Towers"). In this regard he submitted as follows:-
(i) That power to prescribe setback of building vests in K.D.A. And not in K.B.C.A.
(ii) That the road layout plan of 1972 shows about 120 fee width of the road in front of Glass Towers and not 150 feet.
(iii) That the execution of the road widening scheme of the proposed width of 150 feet in front of Glass Towers is impractical in view of- the location of the buildings already constructed.
(iv) That the other builders have been allowed to raise construction without providing setback of the building to the extent which could facilitate the construction of 150 feet road and, therefore, the enforcement of relevant regulation of the Regulations would be discriminatory and hence violative of Article 25 of the Constitution.
(v) That since the construction has already been raised the principle of locus poenitentiae is attracted and the K.B.C.A. Cannot withdraw the above approved plan.
(vi) That if in fact the road is to be widened the require land for the above widening should be acquired half and half from both sides of the road and not from the side of Glass Towers alone.
(vii) That in any case a portion of the builders land cannot be acquired for road widening without compensation.
(b) On the other hand, Mr. Naimur Rehman, learned counsel appearing for the residents has submitted as under:--
(i) That in view of Item No,30 to Schedule 'GPart 9 to the Regulations Volume II which has statutory force, the width of the Sir Abdullah Haroon Road from Hoshang Road up to Clifton Scheme comes to about 150 feet and, therefore, K.B.C.A. Could not have passed a plan in violation of the above Regulations.
(ii) That factually the plan of 1972 relied upon by Mr. Muhammad Farogh Nasim is not the relevant plan, but actually the map of Karachi Improvement Trust, dated December, 1951 is the relevant layout plan which shows the width of the relevant portion of Sir Abdullah Haroon Road as 150 feet.
(iii) That it is incorrect to urge that it is not practical to execute the above proposed work of widening.
(iv) That it is also wrong to urge that the builders have been singled out, but factually all the buildings adjacent to Galss Towers have the setback in terms of the above Item No,30 of the Schedule 'GPart 9 to the Regulations Part II.
(v) That the principle of locus poenitentiae cannot be invoked in aid against the residents.
(vi) That it is not possible to have half land from each side of the road for widening of the same in view of the alignment of the Clifton overhead bridge, which is situated very close to the Glass Towers.
(c) Mr. Fazle Ghani Khan, learned Senior, Advocate Supreme Court appearing for the K.B.C.A. Has supported the submissions of Mr. Naimur Rehman and submitted that K.B.C.A. Overlooked the above Regulations on account of the buildersmanipulation, while granting the approval of the building plan. His further submission was that factually the road in question is to be widened in 'terms of the above Item No,30 of Schedule 'GPart 9 to the Regulations Part II.
8. Adverting to the above first submission of Mr. Muhammad Farogh Nasim, it may be observed that in support of the same he has referred to Article 85 of the Order, which empowers the K.D.A. To prescribe street line and building line. In this regard, it may be mentioned that since the plot was not part of the K.D.A. Scheme No,5 but is owned by the Karachi Metropolitan Corporation, it is debatable as to whether any reference can be made to above Article 85 of the Order. In any case, the above factum loses significance in view of the fact that the Regulations have the statutory force by virtue of I subsection (3) of section 21-A of the Ordinance as held by this Court in the case of Multiline Associates v. Ardeshir Cowasjee and others (PLD 1995 SC 423). The above Regulations are to be enforced by K.B.C.A. Which is the authority competent under the Ordinance to grant approval of a building plan and, therefore, K.B.C.A. Is under statutory obligation to provide setback or cutline or building line of a proposed building as per Regulations while according approval to its plan. Additionally, section 2 of the Ordinance provides that nothing contained in any other law for the time being shall apply to any matter regulated by this Ordinance. The above section 2 would override the above Article 85 of the Order to the extent of inconsistency.
9. As regards Mr. Muhammad Farogh Nasim's second submission, it may be observed that the learned Division Bench discarded the above layout plan of 1972 for the following reason:- "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."
The above reasoning found favour with the learned Bench does not suffer from any legal infirmity. It may be observed that it is not necessary even to record any finding on the question, as to whether the road layout plan relied upon by Mr. Muhammad Farogh Nasim is a genuine document or whether the layout of 1951 referred by Mr. Naimur Rehman, holds the ground, as any layout plan of the road in question contrary to above Item No,30 of Schedule 'G', Part 9 to the Regulations Part II, is liable to be ignored. The above Item No,30 reads as under:- S. No,Name of the Road Existing Width Proposed Width Remarks
30. Sir Abdullah Haroon Road Victoria Road (from Musical Fountain up to KDA Scheme No,5, Kehkashan24.4m 36.6m (i) From Musical Fountain to Hoshang Road 36.6m.
However, Mr. Muhammad Farogh Nasim submitted that in view of para. 3 of the Regulations, Part II the above Item No,30 of Schedule 'GPart 9 to the Regulations Part II, cannot be enforced unless the scheme of widening of roads is under implementation. He has relied upon paras. 1 to 3 of Schedule 'GPart 9 of the Regulations II. In this behalf, it may be pertinent to reproduce paras. 1 to 3, which read as follows:- "(1) The purpose of the road widening of major road is to relieve traffic congestion on the existing roads, promote traffic safety on streets, convenience of pedestrians 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 Wideningmeans proposed widening of any road/street by drawing up new alignments. All the buildings on the roads declared under road widening 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.
(3) For the purposes of these regulations roads listed in this Schedule 'Gwhich are already under implement shall be considered as declared."
In our view, if the above paras are to be read together alongwith the above quoted Item No,30, it becomes evident that the K.B.C.A. Has the power ''''to provide setback or building line while approving a building plan in view of the above quoted paras.
10. Reverting to Mr. Muhammad Farogh Nasim's above third submission, it would suffice to observe that there is 'no material available on record to support his above contention, that it is not practical to execute the proposed scheme of widening of the road in question as envisaged by the above- quoted Item No,30 of Schedule 'GPart 9 to the Regulations Part II, as has been ordered by the High Court. Additionally, it appears that no such plea was raised before the High Court.
11. Reverting to Mr. Muhammad Farogh Nasim's fourth contention, it may be observed that there is no reliable material on record to support his above submission that other builders have been allowed to raise multi-storey buildings near the site of Glass Towers without setback as envisaged by above-quoted Item No,30 of Schedule 'GPart 9 to the Regulations Part II. Even otherwise, if the above contention is assumed to be correct, the factum that earlier the above Regulation was overlooked or breached would not justify the repetition of the violation of the same.
12. Reverting to Mr. Muhammad Farogh Nasim's above fifth contention, it may be observed that the principle of locus poenitentiae cannot be pressed into service against the residents as they were not the authority, which had accorded the approval to the buildersbuilding plan in violation of the Regulations, and secondly, the above principle cannot be invoked in aid to perpetuate an illegal action, which may be detrimental to the interest of the public at large.
13. As regards Mr. Muhammad Farogh Nasim's above sixth submission that the land required for widening of the road should be acquired half and half from both sides of the road, it may be mentioned that from the impugned judgment, it seems that no such plea was raised before the High Court obviously for the reason that it is a technical matter falling without the domain of K.B.C.A.
14. Adverting to the above last submission of Mr. Muhammad Farogh Nasim, it may be observed that the question of payment of compensation for the portion of the plot required for widening of the road is not at issue at present. It is, therefore, not necessary to examine the above question. It may arise when the land in actually utilised for the widening of the road.
15. The upshot of the above discussion is that Civil Appeal No,756 of 1998 fails.
16. Adverting to Civil Appeal No,757 of 1998, it may be observed that it was pointed out to Mr. Naimur Rehman that in view of the undertaking given by the builders before the High Court that they would not construct high-rise building in terms of the Chief Minister's order, dated 19-1-1996 but would raise construction in accordance with the original approved plan, namely, building comprising basement + ground floor + 1/3 loft + 4 upper floors the judgment of the High Court seems to be just and proper keeping in view the reasons recorded by the High Court in para. 27 thereof which reads as follows:-- "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 multistoreyed 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 multi- storeyed 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."
He was unable to controvert the above position, but submitted that the builders in fact have been raising construction in breach of the above original approved plan. He requested that this Court should examine the above question of breach for the reasons that in the above leave granting order, dated 18-5-1998, it was ordered that the additional construction shall be carried out by the builders strictly according to the plan approved by K.B.C.A. And if during the course of the construction K.B.C.A. Finds any deviation or violation of the plan, it will be open to take action against the builders in accordance with law after notice to them. Mr. Fazle Ghani Khan, learned counsel appearing for K.B.C.A. Also joined Mr. Naimur Rehman in the above prayer.
17. The High Court has declined to go into the above question for the following reason:-- "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."
We are also of the view that it will not be proper for us to examine the above question as the same will need recording of evidence. Secondly, any observation for or against by us will prejudice the matter pending before the High Court on the above question of breach of the original approved plan.
18. Though we are of the view that the judgment under appeal does not call for interference by this Court. However, we would like to add that simpliciter the fact that the conversion of a residential plot on a main road into a commercial plot is warranted on account of the change in the situation would not justify the violation of any provision of any law or building bye-laws or regulations, nor it would warrant grant of permission for a high-rise building having 17/18 floors. The Government, or the Authority concerned is under obligation to decide the question of number of floors keeping in view the extent of availability of utility services like water, electricity, gas, sewerage lines, streets and roads in the locality involved and the permission for construction of a proposed building should be of minimum floors, which may cause minimum inconvenience and discomfort to the residents of the locality. With the above observation Civil Appeal No,575 also fails,
19. Before concluding the above discussion, we may observe that in the detailed judgment, of Civil Appeal No,1888 of 1996 (Ardeshir Cowasjee and others v. Karachi Building Control Authority and others), which was also decided on 3-5-1999 alongwith the above two appeals, we have dealt with the question of conflict of views between the two judgments of this Court rendered in the case of Multiline Associates v. Ardeshir Cowasjee and others (PLD 1995 SC 423) and the case of Abdul Rank v. Karachi Building Control Authority (PLD 1994 SC 512) and have held that to the extent of inconsistency between the above two judgments, the view taken in the case of Abdul Razak v.
Karachi Building Control Authority is correct, Since the above questie had already been dealt with in the judgment of the aforesaid Civil Appeal No,1888 of 1996, it is not necessary to repeat the same in this judgment.