1. ' HAMID ALI MIRZA, J.---This is a Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan wherein the petitioner has prayed that the respondents Nos.6 to 9 be restrained from raising further construction or undertaking finishing work with regard to the construction on the said JM 220 and/or handing over the possession of said plot, construction or any parts of the building to any person, to direct the respondent No,1/KBCA to demolish all illegal construction already raised thereon that is basement and second and third floors and leave intact only ground plus first floor and further the respondent KBCA be directed to exercise all its statutory powers and duties under the KBCA Ordinance, 1979 and all Bye-laws and Rules with regard to the construction already raised or being raised on the said plot and to take steps to demolish all portions of illegal construction raised on the said plot and further the said respondent No,1 be restrained from issuing NOC to sell to the said respondents Nos. 6 to 9 and to issue any completion certificate in respect of construction raised in violation of law and regulations in respect of the building raised on the plot and respondent No,4 and District Registrar and Sub-Registrar be restrained from registering any sub-lease or conveyance-deed in respect of construction raised on the said plot and respondent No,5 KESC be restrained from giving electric connection to respondents Nos.6 to 9 for the said plot of land in respect of illegal building constructed thereon.
2. ' The petitioner has sought the above relief on the grounds that he would be immediately affected by the illegal construction being owner of adjoining plot No,JM 221, 34 Aamil Colony No,1, Jamshed Quarters, Karachi, and additionally he was interested in the preservation of environment, particularly within the vicinity of Quaid-e-Azam's Mazar considering that on 10-9-1991 a notification has been issued by respondent No,3 Government of Sindh for the protection of the area near Quaid-e-Azam's Mazar which laid down that within an area of six furlongs of Quaid-e-Azam' Mazar no building shall be constructed with a height above that of podium level of Mazar that is 91 feet above mean sea level and that respondent No,1 had got illegally approved building plan as per letter, dated 13-10-1997 from the Deputy Controller of KBCA which permitted construction of basement plus ground plus three upper floors when officially only ground plus first floor is allowed in the said area and not more than that could be approved whereby the petitioner's right to light and air would be disturbed and it would also create nuisance by raising construction higher than what was permissible considering that no compulsory minimum open spaces on all sides of built- up area had been left.
3. ' Respondent No,6 Saleem Ahmad filed counter-affidavit stating therein that height of the building was not more than 40 feet from the ground level and each floor was having roof at the level of 10 feet plus 10 feet above was over head water tank and that building was being constructed in accordance with the approved plan passed by KBCA according to which basement and ground floor plus three with five feet open space around the building was allowed and further that the building in question has been completed except the outside plastering and coloring as well as inside coloring of the building and lumbering work. It is also stated that there are 24 flats in the building which have since been booked and the same would be handed over to the purchasers/ allottees after completion of coloring and lumbering work and said purchasers have made payment as per schedule of their booked flats as such third party interest has been created.
4. ' This Court as per order, dated 27-1-1998 appointed the Nazir of this Court as Commissioner to inspect the site of construction and report about the latest position with regard to the construction, its completion and occupation by third party if any who made inspection of the site with notice to the parties on 3-12-1998 in company of Deputy Nazir with staff accompanied by petitioner Khawaja Habibullah where respondents M/s. Muhammad Hanif and Saleem owner of the plot were also present, the Nazir in his inspection report has given the details of the construction which reads as under:--- "BASEMENT: ' Basement is constructed on entire area of plot. Plaster work is completed, while the Ramp and floor of the basement were without flooring. Building material was lying there.
5. "GROUND FLOOR: ' There are six (6) flats. Out of which two flats are of two beds with attached bath, kitchen and common, while remaining 4 flats are of 3 beds with attached baths, kitchen and common. Plaster work and marble flooring is completed and door frames were fixed without leaves, except main door of flats and white wash had been applied. Windows at front and rear side were completed with Aluminum Glasses.
6. "FIRST FLOOR: ' Consisting on seven flats. Out of which twb flats of two beds with attached bath, kitchen and common and remaining 5 flats are of 3 beds attached bath, kitchen and remaining 5 flats of 3 beds attached bath, kitchen and common. The condition of said flats are same as Ground Floor.
7. " SECOND FLOOR: ' Same as of First Floor. THIRD FLOOR: ' Same as of First Floor. ON ROOF: ' Covered with parapet wall inside without plaster and flooring. One Over Head Water Tank constructed on Staircase Tower, without plaster, shuttering of tower of roof was not removed, about 13 tasted columns were appeared. The building material was lying on roof. Steps of staircase, paved marble up to Third Floor. Near the staircase, the lift well was without plaster as well as without lift.
8. ' Towards southern side at frontage covered with construction. Elevation of building was plastered and applied white-wash. The said building was found unoccupied."
9. ' Respondent No,1 KBCA also filed comments on 18-12-1998 stating therein that the proposed plan was approved for basement plus ground plus three floors on 3-10-1997 on the basis of Town Planning, N.O.C., when the owner started construction in violation of approved building plan, at initial stage necessary notice was issued on 12-12-1997 with regard to the violation in raising construction and so demolition action was taken on 13-12-1997 and the owner was directed to stop further construction and thereafter the owner obtained revised approval for basement plus ground plus three upper floors on the basis of Town Planning NOC on 11-2-1998. It is stated in the comments that construction raised was according to the approved height, approved COSs therefore structure on Plot No,220 would not affect any neighbour, only front road side's compulsory open space which was in violation was removed and height of the building was within the height of 91 feet from the sea level and the plan was approved according to Sindh Buildings Control Ordinance, 1979 after compliance of legal formalities.
10. ' As per orders, dated 23-12-1998 passed by this Court. Official Assignee was directed to seal the building consequently on 7-1-1999 the said Official Assignee sealed the building by pasting notices on the doors/ windows and walls of the building from ground floor up to third floor and the fourth floor of the building where clowns are erected and partial shuttering was made on the roof of third floor when at the time of sealing none of the flat was found occupied and the front elevation of the building was found damaged by local authorities.
11. ' The report, dated 29-9-1999 of Deputy Controller of Buildings Zone XIX, KBCA/KDA runs:---
(1) PLOT STATUS: ' The suit property presently admeasuring 1190 O.S. Yds. Situated on Plot No, J.M. 220 Jamshed Quarters.
(2) APPROVAL: ' The approval of the suit property was accorded for basement + Ground and three upper floors having car parking on basement and residential floors vide No,KBCA/ KDA/DCB XIX/ Revised/ 98/ 06, dated 11-2-1998. Apartments on Grounds and three Upper Floors.
12. ' With COS as under: Front 10.0 ft.
13. ' All other three sides 5.0. The site plan of the plot enclosed.
(3) VIOLATIONS:
(a) Deviation against the approved plan.
(b) Excess area has been covered.
(c) Front and left COS has been covered.
(4) ACTION TAKEN: ' Demolition action has been taken by removing the entire COS construction in violation of approved plan.
(5) BYE-LAWS: ' Allowable covered area is 1/3 of plot, area on each floors allowable ratio of the plot is 1:1.75.
(6) REGULARISATION:
(a) The regularization/revision plan is submitted as under:--- {{TABLE}} Area of the Plot 1190.0 S.Yds.
14. 10710 s.Ft..
15. Plot ratio 1:1.75 18743.0.S. Fts. Submitted area 18710.68.S. Fts. For B+G+3rd floor {{TABLE}} ' The regularization could not be process due to ban imposed by KBCA Oversee Committee.
16. ' PRESENT POSITION: ' Finished structure comprising of Basement + Ground + three upper floors existing at site which is still vacant.
17. ' The construction so far is within allowable plot ratio."
18. ' The compliance report of Controller of Building, dated 13-12-1999 reads as under:---
(i) The plot in question is residential plot admeasuring 1190.0 sq. Yds. Situated in Jamshed Quarters the initial approval was accorded for B + G, + 3 upper floors within plot ratio A 75 covered area on each floor having Basement for car parking and G + 3 upper floors for residential apartments vide, dated 13-10-1997 on the basis of Town Planning NOC with the COS as under:-- ' Front side 15.0 feet All three sides 5.0 feet
(ii) Thereafter revised approval was accorded for B + G + 3 upper floors within the plot ratio of 1:75 on the basis of Town Planning, NOC VIDE DATED: 11-2-1998, with the COS as under:-- ' Front side 10.0 feet All three sides 5.0 feet
(iii) The owner raised the construction in deviation of approved building plan. Number of demolition actions taken after issuing of necessary Notices.
(iv) The owner then obtained status quo order in C.P. No, D-447 of 1998 and kept the construction continues. Necessary letters issued to the:
(a) District Administrator to get the work stopped.
(b) utilities Agencies were requested not to provide the services.
(c) During the pendency of C.P. D-447 of 1998 the owner filed the another Suit No,229 of 1998 in High Court and obtained stay order.
2. DEMOLITION ACTION TAKEN BY KBCA/KDA:
(i) However the construction raised in COS were demolished by KBCA/KDA. It is pertinent to mention that the subject plot is included in CP D-160 of 1998 filed by M/s. Sheri and the Honourable High Court ordered for taking the demolition action.
(ii) In compliance to the High Court Order demolition action was started with the help of District Administration Private Labour and action remained continue for about five days, all portions of COS were demolished by the KBCA. During the process of demolition the owner produced the stay order in Suit No,229 of 1998, the further action was stopped. (Photographs attached herewith) (Annexure "A").
3. SEALING ACTION:
(i) In compliance of the Court order the premises was sealed through official assignee on dated 7- 1-1999.
4. REGULARIZATION PLAN SUBMITTED BY THE OWNER:
(i) In the meantime the owner submitted the regularization plan on 9-1-1999.
(ii) As per resolution, dated 8-9-1999 passed by the Oversee Committee in the (22+) 7th meeting relevant portion is as under:--- "ON THE PROPOSAL OF SHEHRI, IT WAS RESOLVED THAT IN THE CASES WHERE DEVIATION FROM THE APPROVED PLAN HAVE BEEN COMMITTED IN SUCH A WAY THAT IF THE VIOLATIONS ARE WITHIN RULE AND REGULATIONS IN SUCH CASES REGULARIZATION SHALL BE ALLOWED." (Photocopies are attached)
19. (Annexure "B").
(iii) "It was further resolved that on KB and TP regulation Part I and Part 2 shall be followed in letter and spirit and nothing else including previous notifications/ order/long standing practices, etc. If any." (Photo copy attached) (Annexure "C").
(iv) That vide KB & TP Regulation No,16 as under:---
(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....(Photo copy attached) (Annexure "D").
5. REGULATION PLAN APPROVED BY KBCA/KDA:
(i) The total covered area was well within the allowable plot ratio. The regularization plan was considered and approval was accorded as per rules and regulations for B+ G+ 3 upper floor on 26- 10-1999 vide Letter No, KBCA/KDA/DCB-XIX/ 5/1/19/77, dated 26-10-1999. (Photo copy attached (Annexure "E"). After realizing the Composition Fee of Rs,2,22,100 (Two Lac twenty-two thousand one hundred only). (Photo copy attached) (Anenxure"F").
(ii) It is clarified that the building in question is within the height in the vicinity of Quaid-e-Azam Mausoleum.
6. PRESENT POSITION OF THE SITE:
(i) After the demolition action and regularization building plan is/no any violation at the site.
(ii) Building sealed from 7-1-1999.
(iii) B + G +3 upper floor complete and unoccupied.
20. ' The statement, dated 9-2-2000 of the Controller of Buildings Circle 'D', KBCA runs:---
(1) The building plan was approved for B + G + Three uppers on plot No,220 JM, Jamshed Quarters, KAR.
(2) The builder deviated from the approved plan in respect of compulsory open spaces, details of deviations are as under:
(i) Balconies projections.
(ii) Bath rooms, projections.
(3) The said deviations have been removed by the KBCA.
(4) The minor deviations of the approved building plan such as utilization of excess of the building which has been regularized as per rules, by the competent authorities of KBCA.
(5) The co-owner of plot. Mr. Saleem Ahmed has submitted the undertaking, dated 14-12-1999, regarding violations and assurance that he will not raise construction against the approved plan.
21. The photo stat copy of said undertaking is attached.
(6) Now, there is no violation/deviation of the approved plan."
22. ' The above statement is also accompanied by an undertaking of respondent Saleem Ahmad wherein he has stated that whatever violations were found on Plot No,220, Jamshed Quarters, Karachi, have already been removed by KBCA and present structure was absolutely according to approved plan and no further construction would be caused against the approved plan.
23. ' The petitioner as per his comments, dated 15-2-2000 to the statement of Controller of Buildings, KBCA, has stated that the builder has deviated from original and revised approved plans and the alleged minor deviation could not be regularized and the covered area was in excess than permissible bye-laws and that the construction was in violation of lease conditions.
24. ' We have heard the learned counsel for the parties and perused the affidavits, counter-affidavits , affidavits-in-rejoinders, annexures, reports and comments filed by the respective functionaries.
25. ' Learned counsel for the petitioner has submitted that the violations in raising the building cannot be regularized and the terms and conditions of the lease could not be varied in absence of registered document by the lessor. He further submitted that the compulsory open space has not been left as provided by regulations. He has placed reliance upon (i) Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others (1999 SCM R 2883) and (ii)
26. Muhammad Khurshid Abbasi v. Administrator/Assistant Commissioner, Municipal Committee, Murree and another (1999 SCM R 2224).
27. ' Learned counsel for respondents Nos.6 to 9 has submitted that petitioner had initially two grievances (i) that the building exceeded the level of Quaid-e-Azam's Mazar podium and (ii) that the respondents Nos.6 to 9 have got approved building plan for basement plus ground plus three floors only but thereafter the petitioner has raised other pleas as well. He further submitted that excess covered areas has been regularized and has referred to Regulation No,16, page 15 of Building Regulation Part-I, page 107(m) of Schedule 'A' of Town Building Regulations, Part II where relaxation in compulsory open space could be considered on technical grounds and has also referred to page 114 of Schedule 'E' of. Town Building Regulations, Part II. He has also placed reliance upon the plot ratio standard mentioned at page 92 of Town Building Regulation, Part II.
28. ' Learned counsel for respondent No,1 has referred to the statement of the Controller of Buildings, dated 9-2-2000 at pages 397 to 399 of the petitioner and undertaking of respondent No,6 Saleem Ahmad at page 401 and has also referred to schedule of the area as per building plan shown at page 383, Annexure 'C' showing the total area of the plot 1190.00 sq. Yds. Or 10710.00 sq. Ft. And total covered area of ground floor as 4675.42 sq. Ft., first floor 4675.42 sq. Ft., second floor 4675.42 sq. Ft.
29. And third floor 4675.42 sq. Ft. He has also referred to Abdul Razak v. Karachi Buildings Control Authority and others (PLD 1994 SC 512).
30. ' Learned counsel for respondent No,2 has submitted that no relief has been claimed against the KDA/respondent No,2.
31. The contentions of learned counsel for the petitioner are (i) that respondents Nos.6 to 9 are raising unauthorised construction on Plot No,JM 220 on the basis of illegally approved building plan for basement plus ground floor plus three floors, (ii) that the height of the building was above that of podium level of Quaid-e-Azam's Mazar viz. 91 feet above mean sea level, (iii) that right to light and air would be disturbed, (iv) that raising of building would also create nuisance and (v) that no compulsory minimum open spaces on all sides of built-up area has been left.
32. ' So far the contention about raising of unauthorized construction over the said plot, the respondent No,6 Saleem Ahmad in his counter-affidavit has denied that any unauthorized construction was being raised over the plot in question. Nazir under the orders of this Court inspected the site on 3- 12-1998 in presence of the parties and their representatives submitted inspection report reproduced above showing the construction on the basement, ground floor, first floor to third floor and roof. The respondent No,1/KBCA filed comments on 18-12-1998, stating therein that building plan was approved for basement plus ground plus three floors on 3-10-1997 on the basis of Town Planning NOC and when it was found that construction was being raised in violation of approved plan and at the initial stage action for demolition was taken on 13-12-1997, thereafter the owner obtained revised approval for basement plus ground plus three upper floors on the basis of Town Planning NOC on 11-2-1998 wherein it was stated that construction raised was according to approved compulsory open space and the structure on the said plot would not affect any neighbour and only front road side compulsory open space was found in violation which was removed. Again on 23-12-1998 Official Assignee sealed the building under orders of this Court who reported that the building from ground floor up to third floor was raised and on the fourth floor of the building columns were erected and there was partial shuttering on the roof of third floor and front elevation of the building was found damaged by the local authorities. On 29-9-1999 Deputy Controller of Building Zone XIX, KBCA submitted his report that approval of suit property was accorded for basement plus ground and three upper floors having car parking on the basement and residential floors and that compulsory open space on the front side was 10 feet while on other three sides 5 feet and the violation against the approved plan with respect to excess covered area viz., compulsory open space was removed. It was also stated that construction so far raised was within the allowable plot ratio. Controller of Buildings as per his report, dated 3-12-1999 has submitted that approval was accorded for basement plus ground plus three upper floors within plot of 1.75 covered area on each floor having basement for car parking and ground plus three upper floors for residential apartments vide approval, dated 13-10-1997 on the basis of Town Planning NOC with the compulsory open space front side 15 feet and all other sides 5 feet and thereafter revised approval was accorded for basement plus ground plus three upper floors within plot ratio of 1:1.75 on the basis of Town Planning NOC, dated 11-2-1998 with compulsory open space front side 10 feet and all other sides five feet. It was stated that construction raised in compulsory open space in violation of approved plan was demolished with the help of District Administration. It was also stated that regularization plan was approved by KBCA and the total covered area was well within the allowable plot ratio and such approval was accorded on 26-10-1999 after realization of composition fee and after demolition action and regularization of building plan, there was no violation of the approved plan at the site. The Controller of Buildings, Circle 'D'. KBCA, in his statement, dated 9-2-2000 stated that deviations in respect of balconies projections and bath rooms projections have been removed by KBCA and the minor deviations of approved building plan such as utilization of excess of the building has been regularized as per rules by the competent authority of KBCA and the co-owner has given undertaking on 14-12-1999 that he would not raise any construction against the approved plan and there was no violation or deviation of the approved plan. So far the contention that the height of building was above the podium level of Quaid-e-Azam's Mazar, it was stated that the building in question was less than the podium level of Quaid-e-Azam's Mazar. The respondent No,1 KBCA in their counter-affidavit and comments have specifically stated that whatever contrary to the provisions of KBCA Regulations was done by respondents Nos.6 to 9; same has been demolished and removed and whatever minor deviations were there, the same have been regularized after realization of composition fee. The petitioner's learned counsel has not shown specifically that there were violations in the building plan in respect of any sanctioned site development scheme or the construction so raised would obstruct any future road widening scheme or that the height and number of stories exceeded permissible limit under the regulations or the building extended beyond the property limits or the building work violated fire or any other safety requirement or that NOC from Master Plan and Environment Control Department was not obtained for the purpose of regulations of the deviations so regularized. Nothing has been pointed out that the KBCA has regularised the said minor deviations or regularised the compulsory open space in excess of their authority. The learned counsel for the petitioner has not pointed out that the regularization has been made in breach of the regulations which would change the complexion or character of the structure which was originally intended to be erected on the said plot. So far the contention with regard to the diminution to light and air, nothing has been brought on record by the petitioner that in case said construction as approved by KBCA in favour, of respondents Nos. 6 to 9 is raised light and air would be diminished. In absence of such material on record, it cannot be said that the construction so raised in respect of building would disturb the rights of the petitioner in respect of right to light and air. So far the contention of the learned counsel for the petitioner that raising of the building would create nuisance, no material/evidence has been brought on record to say that the raising of the said building would be a nuisance to the petitioner. The learned counsel for the petitioner could not point out from the reliable material on record that the final approved building plan was in contravention of Rules and Regulations of KBCA.
33. ' So far the case Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others (1999 SCM R 2883), the facts of the cited case are different and distinguishable to the facts of instant case, considering that the cited case was in respect of amenity plot meant for construction of revolving restaurant, as an attraction for the visitors which plot was carved out from the land reserved for the Bagh-e-Ibne Qasim whereupon high-rise building i,e,, commercial-cum-residential building admeasuring 4851.61 sq. Yds. Was to be raised.
34. Their Lordships in the cited case in para.18 of the said judgment observed:--- "A high-rise building constructed on residential plot cannot be equated that of high-rise building constructed on a portion of park land carved out for revolving restaurant which has direct nexus with the objects of the park."
35. ' The facts of case Muhammad Khurshid Abbasi (1999 SCM R 2224) are iota different and distinguishable to the facts of instant case, considering that the said building was raised in gross violation of Municipal Bye-Laws which was potential threat to the Soil Stability due to seepage and its lack of disposal and due to the possible incidence of land sliding when the residential building was sanctioned whereas the owner constructed eleven stories above the plinth level and further the owner was to maintain building line 40" away from the center of road instead of that at site it was 38" and at second place it was 15's and no drainage and sewerage system were provided and the violations made were held not to be compoundable.
36. In view of above material and reasoning's on record we do not find substance and merit in the contentions of learned counsel for the petitioner consequently the petition is dismissed in limine along with the listed applications. However in case if it is found by KBCA before issuance of completion certificate of the building in question that there were violations to the approved building plan or were against the regulations and rules of KBCA, the said respondent-KBCA would be at liberty to take action against the respondents Nos.6 to 9 in respect of building in question.