1. ' Brief facts of the case are that the plaintiff claims to be co-owner of plot No .43-1/A , Block-6, P.E.C.H. S. , measuring 3141.11 Sq. Yards. It is the contention of the plaintiff that for constructing a project called "Fortune Tower" on this plot he applied to the defendant No,1, who in turn duly approved the plan dated 18.2-1997, according to which the plaintiff was allowed to build ground plus three parking floors plus thirteen upper floors. The plaintiff states that he began the construction strictly in accordance with the approved plan. While the construction was in progress, he booked major part of the building to be constructed in advance and had .Indeed made booking of about 80% of the units/offices to be built. It was at this juncture that the defendant No,1 issued a notice dated 29-5-1998 to the effect that the plaintiff had committed certain violation of the approved plan. This was followed by a reminder which also required the construction work to be completely stopped. The plaintiff, therefore, served a notice dated 8-6-1998 under section 20-A of the Sindh Building Control Ordinance, 1979 wherein he rejected the contentions of the defendant No, 1 . It seems that thereafter, the plaintiff filed Suit No,885 of 1998 in this Court in which by order, dated 14-7-1998, the Court restrained the defendant No,1 from giving effect to their letters, dated 29-5-1998 and 6-6-1998 whereby construction work was sought to be stopped by defendant No,1, thereafter, the plaintiff resumed the construction of the building. Later the plaintiff felt the need to make certain alteration in the plans for internal construction of the building as per the advice of its architects. Realising that the defendant No,1 did permit the compounding of the offence of violation of the approved plan particularly when it related to internal construction and there being a number of precedence's to this effect, the plaintiff decided to continue with the construction work in accordance with the approved plan as far as the external construction leaving of open spaces and number of stories were concerned but admittedly proceeded to make alterations in the internal construction of the building. Since the earlier Suit No,885 of 1998 had been filed for a different purpose it became infructuous and the plaintiff withdrew the said suit. However, it seems that this did not end the troubles between the plaintiff and the defendant No,1, who according to the plaintiff continued to harass him and tried to force him to demolish the construction already made. The defendant No,1 also responded negatively to the plaintiff exhortations that they were not indulging in any deviation in so far as the external construction was concerned and the deviation was related only to the internal construction which in any case ought to be Regularised under the Regulation No,16 of the Karachi Building and Town Planning Regulations, Part-I. The plaintiff contends that the defendant No,1 are unnecessarily pressurising the plaintiff when they have already regularised such internal deviation in case of many other projects. According to them the defendant No,1 has resorted to these tactics at the behest of the plaintiff's competitors.
2. ' On the other hand the defendant No,1 in their counter-affidavit state that from the very beginning the plaintiff started raising construction in violation of the approved plan inasmuch as they changed the floor levels and the structural position as approved which led to issuance of notice for stopping of work on 29-5-1998 and 6-6-1998. Instead of complying with such directions the plaintiff with unseemly haste filed Suit No,885 of 1998 and then after having achieved, his objective withdrew that suit. The defendant No,1 contends that the plaintiff has deviated from the approved plan by changing the floors level and the structural position at the very initial stage and from 4th floor and onwards above parking floors. According to the defendant No,1 the plaintiff has already availed the permissible plot ratio i,e, 1:4 at 8th floor and has covered more than 200% of the floor area of the approval granted to the plaintiff that is he has covered the maximum area of construction to the extent of 1,13,080 sq.Feet. The defendant No,1 further states that while there was indeed a provision for compounding of certain deviations but such deviation regularization has now been banned under a notification dated 20-7-1998 of the Government of Sindh. In any case the defendant No,1 contends that even under the provisions for compounding of deviation from the approved plan upon payment of penalty, there are certain exceptions and plot ratio is one of them and consequently the defendant No,1 is not entitled to regularise such deviation from the approved plan.
3. ' Presently there are two applications before me one is C.M.A. No,11002 of 1998 under Order 39, rules 1 and 2, C.P.C. By the plaintiff whereby the plaintiff seeks to restrain the defendants from interfering with the construction by the plaintiff and from taking any adverse or coercive action in relation to the internal construction work of the project. The other application is C.M.A. No,740 of 1999 by the defendant No,1, whereby the defendant No,1 seeks the modification of the order, dated 18-2-1998 and 23-12-1998 to prevent the plaintiff from constructing any further floors beyond the 8th floor already constructed by them since according to the defendant No,1 the plaintiff has already covered the maximum area of construction as permissible under the approved plan.
4. ' Now the planning, Construction, Control and Demolishing Building and Plots in the Province of Sindh is regulated by the Province of Sindh Building Ordinance, 1979 as amended from time to time.
5. Under section 29-A(3) of this Ordinance, the Karachi Building and Town Planning Regulations 1979 in case of Karachi Development Authority KDA and the bye of the Council concerned in other cases are deemed to be the regulations till other regulations are framed under the Ordinance.
6. Consequently, for purposes of this case one has to consider the regulations concerned in the Karachi Building and Town Planning Regulations which are divided into two parts, part one being the Building Regulations and part two Town Planning Regulations (hereinafter referred to as the Regulations).
7. ' It is an admitted position that the plaintiff has violated the approved plan but the plaintiff contends that the violation is only in respect of the internal construction of the building. Basic structure of the building continues to remain the same as per the approved plan. Furthermore, the plaintiff contends that the violation of the internal construction was itself necessitated by the architectural plans and under the regulations cited above these can be regularised upon payment of penalty. In so far as the defendant No,1 is concerned while they admit that certain deviation from the approved plan can be regularised under these regulations, there are certain exceptions to the rule which have been clearly laid down in these regulations and the plot ratio which in this case was 1:4 is one such exception. Consequently, there is no possibility of regularisation of this deviation. Moreover, they contend that as per the Government of Sindh notification such regularisation in any case has now been banned.
8. The concept of regularisation of deviation from the approved plan is, I must admit, quite unpalatable to me. One might ask what is the purpose of making a rule or regulation which can be deviated from and such deviation can be compounded upon payment of penalty. Surely this would be contradiction in terms, for, rules are made to be obeyed and not to be deviated from. If such be the case then that would tantamount to allowing premium on deviation from the rules and, thus, those who choose to obey the rules would suffer and would be at a disadvantage as compared to those who choose ILA to obey the rules. Town Planning and Building Regulations had been introduced in major cities the world over in the aftermath of the first world war due to great influx of population from the villages to the cities. Purpose of Town and Building Regulations basically is to prevent the builders from construction which can in any way interfere with the tangible as well as intangible rights of other citizens of city. While tangible rights need not be dwelled upon here, the intangible rights relate to right of a citizen to, amongst other things, enjoy a good quality of life by having a better environment around him. Need it be said that it is human nature to try and obtain maximum advantage even if it is to the detriment of the others. The civilized societies introduce rules and regulations to prevent free play . To such primitive instincts and the hallmark of such societies is the observance of such rules. Consequently if a rule is made and is violated and then it is condoned the entire structure of a society can collapse. A rule, a regulation or law by its very nature must be enforced because only if it is enforced there is purpose to its formation. Rules assume meaning only when they are enforced and it is only when such enforcement is without any discrimination and without any consideration of status or position of the violators of the rules that the enforces of rules acquire credibility. A wrong once committed cannot be righted by payment of penalty, for that would be a wrong in itself and two wrongs cannot make a right. The concept of penalty was devised as a punishment for a wrong and not as condonation of it. It essentially entails two things. First the reversion to the original state and then payment of fine for having committed the offence. If the first element is missing then it is not a penalty but a disguised mode of permitting the perpetuation of a wrong. It is the availability of such discretion with the State functionaries that leads to corruption and opens windows for wrong doing whereby Government officials use this opportunity to black mail others and relying on the avaricious nature of human being exploit them to extract money. In my view the concept of compounding of an offence is relevant only to criminal law where an illegal act of an individual affects another individual/ individuals or the State. On the other hand in civil law where illegal act of an individual affects society at large compounding would amount to discrimination between law abiding and non law abiding citizens and, thus, violative of Article 25 of Constitution of Pakistan and hence to that effect would be of no legal effect.
9. In this case there is no doubt that the Regulation 16(1)(c) does provide for compounding of the offence of violation of Regulations. Even though compounding is discretionary, but since it is provided for I think to that extent the logic of the learned counsel for plaintiff Mr. Farough Naseem, is irrefutable. If the rules do provide for deviation from the approved plan upon payment of penalty and if such facility has been made available to various other projects, there is no reason why the same facility should not be available to the plaintiff. Indeed if it is not made available to the plaintiff it will surely amount to discrimination. However, there are provisos to such facility one of which that is Regulation 16(2)(c)(1) reads as follows:-- "(c) compound the offence after realization of composition fee on the merits of the case, provided that no offence shall be compounded if:
(i) the building works or part thereof violate any requirements of the provisions of any sanctioned site development scheme; "
10. ' Learned counsel for defendant No,1 contends that this case falls within the purview of the above proviso and hence the deviation by plaintiffs cannot be compounded. Besides he also contends that in any case the Government of Sindh has now banned regularizations of deviation from approved plans vide its notification dated 20-7-199$.
11. Dealing with the latter contention of the defendant No,1 first since Karachi Building and Town Planning Regulations have statutory force the notification of the Government of Sindh cannot override it and hence in my view there is no force in this argument of Mr. Qazi Faiz Essa. In so far as his other contention is concerned, the learned counsel states that the plot ratio of 1:4 that the plaintiffs was required to observe while raising construction is covered by the words "sanctioned site development scheme" appearing in the proviso quoted above. Plot ratio is defined as follows in the Regulation Part II:--
(7) Plot ratio standards and height of Building: (1)Definitions: (a)'Plot ratio' means the relationship between the area of the site and the gross floor area of the building; (b)Site areas in relation to determining the plot ratio is the area of the plot excluding any parts of the adjoining streets;
(c) 'gross floor area' is the measurement of the overall dimensions of the building or part of the building on each floor whether above or below ground level and includes the thickness of internal and external walls but excludes;
(i) space for car parking provided in accordance with the car parking standard in these regulations;
(ii) space for loading and unloading of vehicles provided in accordance with the standard in these regulations;
(iii) lift, lift machine, tank rooms, rooms containing equipment's required for serving the building e.g. Air conditioning plants and electric substations etc."
12. In common parlance plot ratio determines the density of built up area in a certain location. It is basically fixed in the interest of environmental planning with an eye on aesthetics and with a view to preventing the emergence of a concrete jungle, as it were leading to a claustrophobic effect on the citizens. Would it then fall within 'sanctioned site development scheme'. I think it would because maintenance of plot ratio during construction is a very important part of sight development. Now it is an admitted position that the plaintiffs have exhausted the sanctioned plot ratio at the 8th floor but they say that it has happened because of deviation in the plans for internal construction, which they are entitled to compound. I find this to be a fallacious argument. Built up area comprises both internal as well as external construction and if the sanctioned plot ratio has exhausted they ought not to add any further to it as that would constitute violation of plot ratio and hence that of sanctioned development scheme and consequently the offence that would thus be committed would not be compoundable as per Regulation 16(2)(c)(1) quoted above.
13. ' As far as the question of condonation of deviation from the approved plan is concerned, the law makers, while providing for such condonation in Regulation No,16 have laid down in section 12(6) of Sindh Building Control Ordinance, 1979 as under:-- "12: Sale of Building.---
(6) No builder shall without approval of the Authority, make any alterations in the structures described in the plans, design and specifications approved by the Authority."
14. A plain reading of this subsection would show that the law makers did anticipate that there would be requirement for the alteration in structure even after the plans have been duly approved, often for architectural reasons. They have, therefore, provided for such alterations in structure to be condoned but only if prior approval for this has been obtained from the Authority. But there appears to be a wide gulf between law and practice here. The way the practice has developed is that the builders and even ordinary citizens building house for themselves indulge in violation of the approved plan with impunity during the construction phase but seek its regularisation when completion plan is submitted and, thus, present the Authority with a fait accompli. Such was obviously not the intention the law makers as the provision of section 2(6) of 1979 Ordinance quoted above would show, which would prevail over the Regulations, that is to say any regulation in conflict with its provisions would be of no legal effect to that extent. In my view true construction of this provision would be that the Builder can deviate from the approved plan externally or internally only if he obtains prior approval from the Authority. Now in this case it is clear that the plaintiff had not obtained any such approval. In their plaint they do mention that they had approached the defendant No,1 in this connection but there is nothing on record to show that there was any correspondence to this effect or that any approval was actually sought in writing.
15. Presumption would thus be at this is interlocutory stage that no such approval was sought and that the plaintiff on their own and unilaterally decided to proceed with alterations in the internal structure in anticipation of these being regularised subsequently. I do not find anything in the provisions of Sindh Building Control Ordinance, 1979 which could show that a builder could proceed to violate the approved plan in anticipation of regularisation.
16. Considering that no prior authorization was obtained by the plaintiff for deviation from the approved plan and that the deviation sought to be compounded cannot be so compounded I would dismiss plaintiffs' application C.M.A. No,11002 of 1998. In so far as defendant No, 1 's application C.M.A. No,740 of 1999 is concerned, I find they have at this interlocutory stage made out a prima facie case to the effect that the plaintiffs have exhausted the limit of the built up area permitted under the approved plan which in any case is an admitted position and I would, therefore, restrain the plaintiffs from adding more floors/stories to the existing structure till disposal of the suit. C.M.A. No,740 of 1999 is disposed of in terms aforesaid.