1. ' The petitioner through this Constitutional petition have sought the following reliefs: "(a) Declare that the original and revised plans for the building on the plot, approved in violation of the lease/land grant conditions and the Regulations are null and void ab initio:
(b) Declare that construction on the plot effected in violation of the law. The lease/land grant conditions and the Regulations and in contravention of the approved (albeit illegal) plan is illegal and liable to be demolished:
(c) Direct the respondents Nos. 1 and 2 to demolish the building so raised with the assistance of respondent Nos.3 and 4 as the aforesaid construction has been affected in violation of the law:
(d) Restrain the builders, respondent No,1,0 from raising any further construction on the plot or parting with physical possession of the construction already raised or creating any third party interest therein:
(e) Restrain the K.B.C.A., respondent No,1 from issuing any revised regularization approved plans '
2. NOC for sale 'or' occupancy certificate' in respect of the building raised in violation of the Regulations and of the approved plan:
(f) Restrain the Commissioner, respondent No,3 and his District Registrar from registering any conveyance in respect of any part of the property without a proper 'Occupancy Certificate' from the respondent No,1.
(g) restrain the utility companies, respondents Nos.6 to 9 from giving any electric, gas, telephone or water supply connections in respect of the building on the plot, without a proper 'occupancy certificate' from the respondent No,1;
(h) direct the BOR and KMR respondents Nos.3 and 5 to forfeit/cancel the lease of the plot for violation of the building regulations and lease/land-grant conditions;
(i) direct the respondents Nos.1 and 2 to institute multiple criminal prosecution proceedings against the builders, colluding political/ ministers and Government/KBCA officials including respondents Nos.10, 11, 12 and 13 for corruption, fraud and causing public danger and for contravening the Regulations and the Ordinance."
3. ' The facts leading to this petition are that petitioners Nos.1 to 8 are public spirited citizens of Karachi who are interested in preserving the natural and built environment of the city. It is the case of the petitioners that the project "Saima Trade Tower" is being constructed on Plot No, 2A/SR-13, Serai Quarters with frontage on 1.1. Chundrigar Road and Dr. Ziauddin Ahmed Road, Karachi. The structure of the said building -vizir-approved in two stages by respondents Nos.1 and 2 with basement-groundmezzanine + 19 floors, with a covered area of 633, 0004.23 sq. Feet. A 17-foot notified road-widening cut line setback has been shown on I.I.Chundrigar Road. The respondent No,1 and other Government officials have approved the building plan illegally without taking into consideration the irregularities committed by respondent No,10. The permission which was given by retaxing a high rise ban was without authority. It is further the case of the petitioner that respondent No,1 has constructed the building with a plinth level about 3 feet above the road level, and has provided a podium with six steps to give access to the entrance of the building and front offices/shops . This podium/steps encroachment on the notified cut-line setback of I.I. Chundrigar Road will prevent the critically required road widening of this major thoroughfare for generations to come and will contribute to the traffic congestion in the coental business district. The effects on the traffic of the spill-over parking on the surrounding streets including I.I. Chundrigar Road, Dr. Ziauddin and Burns Road, will be horrendous ,Ind will effect all citizens of Karachi including the petitioners.
4. ' Respondent No,1 (KBCA) has filed their comments where it has been stated that the plot in question is a commercial category located at 1.1. Chundrigar Road. Initially the report of the case was submitted to Chief Secretary, Government of Sindh on 25-6-1996 who did not agree with the relaxation and same was disallowed. The case ' again sent and approval was accorded by the then Chief Minister Sindh on 2-9-1996 for basement +ground +mezzanine + 19 floors. The respondent No,10 has constructed the building in accordance with approved plan/town planning approval. The building is occupied upto 6th floor.
5. ' Respondent No,13 Ex-Controller of Buildings has also filed his counter-affidavit and contended that the petition is not maintainable. The petition involves question of disputed facts which requires recording of evidence. The plan was duly approved by the then Chief Minister who was competent authority to pass order.
6. ' Respondent No,10 has filed his counter-affidavit and contended that the petition is not maintainable in law and the petitioners have not come to Court with clean hands. He has further asserted that the petitioners have no locus standi to file the present petition as none of the petitioners live in the proximity of the project in question and that the petition is hopelessly barred by laches because the construction on the plot in dispute has been going on since 1996 and the present petition was filed with mala fide intention when the project had reached completion. The petition raises disputed question of fact, which cannot be agitated in Constitutional petition and the answering respondent has raised construction strictly in accordance with approved plan. It is further averred that the entire stance of the petitioners is mala fide, discriminatory, violative of Article 25 of the Constitution, as the petitioners have picked, chosen and singled out the project of the respondent when on the main I.I. Chundrigar Road a number of buildings exist with greater heights, story and covered area, some of them the petitioners have themselves approved while sitting in the Oversees Committee of the K.B.C.A.
7. ' During the course of pendency of the petitions official assignee was appointed Commissioner to carry out inspection which report is also on the record.
8. ' Mrs. Maimona, Shaikh Muhammad Iqbal, Muhammad Kamran Khan, Askari Commercial Bank Ltd., Messrs Prudential Commercial Bank Ltd. Messrs Siddique Trading Company and Sh. Muhammad Iqbal have filed applications under Order 1, rule 10, C.P.C. For joining as respondents. They have contended that they have purclnsed units after checking the, acts that the builder is in lawful possession of an N.O.C. Of sale and advertisement from K.B.C.A.
9. ' We have heard the learned counsel for the petitioners, learned counsel for respondents Nos. 1, 2 to 4 on the point of maintainability of petitions 10, 12 and 13 as well as learned counsel for intervenors, because on 30-5-2001 learned counsel for intervenors have objected-that the petitioners are not the aggrieved persons as envisaged under Article 199 of the Constitution. They have further submitted that the petition in the nature of public interest litigation which is not within the purview of Article 199 of the Constitution and can only be resorted to before the Supreme Court of Pakistan under Article 184(3) of the Constitution and petitioners should satisfy us on the maintainability of this petition.
10. ' In support of his contention that the petitioners are aggrieved persons and can file public interest litigation, he has placed reliance on the following cases:
(i) Mian Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223 at page 231, (ii) Gupta and others v.
11. Union of India and others AIR 1982 SC 149, (iii) Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416, (iv) Benazir Bhutto v. Federation of Pakistan PLD 1989 SC 473, Muhammad Nawaz Sharif v.
12. President of Pakistan PLD 1989 SC 66, Ardeshir Cowasjee.v. Multilines Associates PLD 1993 Karachi 237, 1995 SCMR 362, Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324, PLD 1996 SC 632, Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161 Ardeshir Cowasjee v. K.B.C.A. And others 1999 SCMR 2883, Shaikh Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 502.
13. ' As against this Mr. Farough Nasim, learned counsel for respondent No,10 has contended that the present petition is not maintainable as the petitioners have not come to Court with clean hands. He has further averred that the petitioners have no locus standi to file the present petition as none of the petitioners live in the proximity of the project in question and that the petition is hopelessly barred by latches because the construction on the plot in question has been going on since the year 1996 and the petition has been fried in the year 2001 which on the face of it is mala fide. The petition involves disputed questions of facts which require evidence, which cannot be done in Constitutional jurisdiction. He has placed reliance on the following cases;
(a) Malik Asad All v. Federation of Pakistan PLD 1998 SC 161.
(b) Shaikh Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504.
(c) Civil Appeals Nos. 717 and 841 of 1998 Bolan Enterprises v. Mushtaq Ali Kumboh and others (decided on 18th April, 2001).
14. Mr. Abdul Hafiz Prizada, learned counsel for some of the intervenor has contended that the present petitioners have no locus standi to file the instant petition as none of their legal rights have been infringed by the construction of the project in dispute. Constitutional petition under Article 199 of the Constitution is not maintainable before High Court as held by Hon'ble Supreme Court in recent pronouncement relied upon by Mr. Farough Nasim, Advocate. According to him petition is not maintainable in view of aforesaid pronoucements.
15. ' The questions which require consideration in this case are whether a ,petition under Article 199 of the Constitution is maintainable before this Court; and whether the petitioners are "aggrieved persons" to file the present petition.
16. ' In order to appreciate the respective contentions advanced by the learned counsel for the parties it is necessary to reproduce Articles 184(3) and 199 of the Constitution which reads as follows; "184. The Supreme Court shall, to the exclusion of every other Court, have original jurisdiction in any dispute between any two or more Governments; (3)Without prejudice to the provisions of Article 199, the Supreme Court shall, it considers that a question of public importance with reference to the enforcement of any of' the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
17. "199. Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law:---
(a) on the application of any aggrieved party, make an order;
(i) directing a person performing, within the territorial jurisdiction of the Court functions in connection with the affairs of the Federation, a Province or a local authority to refrain from doing anything he is not permitted by law to do, or to do, anything he is required by law to do; or
(ii) declaring that any act done or procedure taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, or a Province or a local authority has been done or taken without lawful authority and is of no legal effect" Or
(b) on the application of any person make an order;
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(c) On the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power of performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II.".
(2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged."
18. From the above reading of the Articles 184(3) and 199 of the Constitution, it is very clear that the powers availably to the High Court under Article 199 of the Constitution are intact under Article 184(3). The Supreme Court does have power to suo motu or on application look into the question relating to public importance with particular reference to enforcement of any fundamental rights.
19. This power of Supreme Court is available without prejudice to the provision of Article 199. On the other hand Article 199 starts with the words " on the application of any aggrieved person". The inference is very clear, the provision of Article 199 can be invoked and put into operation subject to an application being made on behalf of an aggrieved person. The question would be who is an aggrieved person. Before we touch the concept of aggrieved person and the maintainability of such a role it would be worth while to look at the case of Sh. Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504)- In this judgment the entire concept enshrined under Article 184 (3) has been discussed at length by Saeeduzzaman Siddiqui, J., (as he then was) wherein he has observed: "In order to acquire public importance the case must obviously raise a question which is of interest to, or affects the whole body of people or an entire community. In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who is the subject-matter of the case, may be of no particular consequence."
20. ' Whether a particular case involved the element of 'public importance' is a question which is to be determined by the Court with reference to the facts and circumstances of each case. There is no hard and fast rule that an individual grievance can never be treated as a matter involving question of public importance. Similarly it cannot be said that a case brought by a large number of people should always be considered as a case of pubic. Importance because a large body of person is interested in the case. The public importance of a case is determined by decision on questions affecting the legal rights and liberties of the people-atlarge, even though the individual who may have brought the matter before the Court is of no significance. Public importance should be viewed with reference to freedom and liberties guaranteed under Constitution, their protection and invasion of these rights in a manner which raises a serious question regarding their enforcement, irrespective of the fact whether such infraction of right, freedom or liberty is alleged by an individual or a group of individuals.
21. ' In the case of Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161, the powers of the Supreme Court under Article 184(3) have been discussed. It has been observed: ' In order to take cognizance of a case under Article 184(3) of the Constitution by Supreme Court, it must be shown that the question raised in the petition is one of public importance and that the relief claimed therein relates in the infringement/enforcement of a fundamental right guaranteed under the Constitution. Supreme Court has not to follow the conventional interpretative approach based on technicalities and ceremonius observance of rule of usage of interpretation but prefer the interpretative approach which received inspiration from the tirade of provisions which saturated and invigorated the entire Constitution, namely the objectives Resolution (Article 2A), the Fumdamental Constitution, namely the Objectives Resolution (Article 2A), the Fundamental Rights and Directive Principles of State Policy so as to achieve democracy, telerance, equality and social justice according to Islam. This liberal interpretive approach opens the door of "access of justice to all".
22. ' Apart from it, the petitioners in the above petitions have sought information in the nature of quo warranto against despondent No,2 who is holding a public office and such a petition can be brought by any person. We are, therefore, of the view that the petitioners who are not only the citizens of Pakistan, but two of them are practising Advocates and one of them is also the Chairman of Civil Liberties Union of Pakistan, have necessary lous standi to file the above petitions.
23. An aggrieved person has been lefined from time to time in several judgments but before we go into those judgments we would look at Balantines Law Dictionary where aggrieved has been defined as deprived of ones legal right. Aggrieved party has been defined as one who is in injuriously affected by the act or omission or commission of another. In Blacks Law Dictionary aggrieved has been defined as having suffered loss or injury and aggrieved party or aggrieved person has been defined as one whose rights invaded by an act complained of or whose pecuniary interest is directlyand adversely affected. The word aggrieved has been referred to as substantial grievance, a denial of personal pecuniary or property right or imposition upon a party of a burden or obligation.
24. The concept of a person being aggrieved by an act of omission or commission by another has been generally related to a personal hurt. By and large it has been observed that an individual who claims to be an aggrieved person can only be so if he can show in what way would the action of the other cause him personal loss. However, with the introduction of public interest litigation the concept has become broader. In order to take up cudgels against act of another individual due to the inaction or apathy of the official agencies citizens have stood up and knocked at the doors of justice seeking timely intervention to prevent and stop a wrong being perpetuated. This right of the citizens or individual is recognized all over the world. One cannot overlook the fact that more than individual, organizations have come up which have taken up issues local, national or even global.
25. The Courts have entertained such applications to investigate and look into the charges/allegations. Indeed there would be certain amount of misuse and abuse of the due process by individuals who may have individual grudges and/or grievances to be satisfied through the Court of law through such litigation rather than the interest of Public at large. Courts have to be careful and should be reluctant to encourage such litigation but this should be done only after an appreciation of the credential of the aggrieved person and the allegations made in the petition, whether it does effect the interest of Public at large.
26. ' It has been noticed that due to the complete lack of planning or perhaps due to an absence of check and balances on the part of authorities who are supposed to regulate the construction in this City there has been a mashroom growth of buildings. This growth it can be argued is part of a dynamism of a large City and is essential for its advance and there would be no cavil to the proposition that change and growth are healthy for the development of a City/Province/or a country. What we are considering, however, is misuse and abuse of growth of such type of construction and that too at random and without taking into consideration the rules and regulations the rights of individuals, the easy accessibility to utilities and the impact of such building on the environment of the City. It is a recognized fact that where there dwelt a Bungalow, there is now a building with at least 20 to 30 apartments. If this is alone to be taken into consideration and its multiple pressure on all utilities, the result would be mind boggling. The unchecked mushrooming of apartment buildihg without proper ventilation system and very very small rooms have led to the concentration of individuals in a limited space. This limited space in turn has become a breeding ground for physical and mental illness of individual resulting in crime and law and order situation. It is now a recognized fact that noise level due to traffic and congestion due to large number of individuals in a limited space has gone beyond the acceptable level.
27. ' Considering the above and looking at the over all growth of the city it is clear that pressure on the utilities has reached a breaking point. The authorities have failed to come up to tackling the over all problem. To the credit of the authorities it must be said that with the limited and merger resource they have managed to do something which, however, is not enough. The beleaguered citizens of the city having failed to get the necessary reliefs from the authorities have turned to Courts which are to them the last bastion of hope.
28. ' It is argued that an aggrieved person is one who should be directly effected. In fact it was argued by the respondent that a person who files a petition has to have a legal right. They have emphasized that in all the cases that the petitioners have relied upon at least one of the petitioner was directly effected by that particular occurrence. According to them in the present petition no one is directly effected. However, one has to look at the whole concept in a much broader context.
29. Individually and collectively persons around the globe have taken up the role of aggrieved person and have persuade the cause in a totally different country. Surely they are not personally aggrieved.
30. ' The concept of public interest litigation is of recent origin. Justice V.R. Krishna Iyer in his judgment Fertilizer Corporation Kamager Union v. Union of India AIR 1981 SC 344 has observed "we have no doubt that in competition between the Court and street as dispenser of justice the rule of law must win the aggrieved person for the law of Court and wean him from the law less street. In simple terms locus standi must be liberalized to meet the challenges of time. In another case reported in AIR 1987 AP 171 a piece of land had been illegally occupied. It seemed that at first sight that no individuals citizens fundamental rights were directly effected. However, the argument was accepted in this case that a space reserved for a green area, therefore, ensuring a better living environment for citizens amounted to violation of the fundamental right for life to all the citizens, and therefore, the private, building project would not be encouraged protection.
31. ' In AIR 1964 SC 665 in the case of State of Orissa v. Ram Chandra Deo a Full Bench whilst looking at the jurisdiction of the Courts under Article 226 of the Indian Constitution has observed that under the said Article the jurisdiction of the High Court is undoubtedly very wide. Appropriate writs can be issued under the said Article even for the purposes other than the enforcement of fundamental rights. However, they have cautioned that it must be established before issuance of writs that the parties has a right and that right is illegally invaded or threatened. They have thus, held that the existence of the right is foundation of writ. In the case of Subhash Kumar v. State of Bihar AIR 1991 SC 420, the Courts had emphasized that to be interested litigation can be entertained but only by a person genuinely interested in protecting Society. It cannot be invoked by a person or group of person for vindication of the grudge or enmity or for enforcement of personal interest. They have gone on to observe that the petition for challenging the pollution is maintainable even if it is filed by a group of social workers or journalist. In the case of J.M. Desai v. Roshan Kumar (AIR 1976 SC 578), their lordships have set certain standards to entertain grant of writs in cases where invocation of certiorari jurisdiction is invoked. They have even discussed the concept of an aggrieved person. They have gone on to state that the meaning of an aggrieved person is very wide and is not confined to invest of a legal right vested in an individual. They have gone on to state that any one who is personally interested and genuinely grieved by an act or lack of action by an authority would fall in the meaning of an aggrieved person. Accordingly they have endorsed the fact that the High Court can exercise jurisdiction for an enforcement of rights whether they be fundamental or for any other person. Extensive case law both of English Courts and the Indian Courts have been relied upon.
32. ' Mr. Muhammad Naimur Rehman learned counsel appearing on behalf of the petitioner has relied on the meaning of aggrieved person. In the case of Mian Fazal Din v. Lahore Improvement Trust (PLD 1969 SC 223) the Supreme Court for the first time laid down that it may not be necessary for a person to have a right in the strict juristic sense. Persons bringing petitions for Consideration may include civic, environmental and cultural interest which have been held to have sufficient interest so that the petition under Article 199 can be maintained. In the case of R.v. Greater London Council ex p. Blackburn (1976) 3 All ER 184). It was observed that if an individual brings proceedings on the failure of the public authority he as citizen of the City and as a tax payers has got a direct interest, and therefore, such petitions should be allowed to be maintained. This case had occurred where a citizen had challenged the exhibition of film which according to him was grossly indecent. In the case of I.R.C. v. National Federation of Self-Employed and Small Business Ltd. (1981 (2) All ER pg. 93).
33. In this judgment Lord Diplock has observed as follows: "It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the Federation, or even a single public spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the Court to vindicate the rule of law and get the unlawful conduct stopped."
34. ' In the famous case S.P. Gupta and others v. Union of India and others (AIR 1982 SC 149), in this case it was observed as follows: "The traditional rule in regard to locus standi is that judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right or legal protected interest by the impugned action of the State or a public authority or any other person who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action. The basis of entitlement to judicial redress is personal injury to property, body, mind of reputation arising from violation, actual or threatened, of the legal right or legally protected interest of the person seeking such redress. There is a rule of ancient vintage and it arose during an era when private law dominated the legal sense and public iaw had not yet been born."
35. ' Similar opinion has been given in the case of Ardeshir Cowasjee v. Multilines Associate (PLD 1993 Kar. 237).
36. ' This case had gone to the Hon'ble Supreme Court Multiline Associates v. Ardeshir Cowasjc, (1995 SCMR 362), where the observation of the Sindh High Court were upheld. The principleof locus standi and aggrieved person under Article 199 of the Constitution was discussed in the case Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324).
37. ' In the case of Shahida Zahir Abbasi v. President of Pakistan (PLD 1996 SC 632).
38. ' In the case of Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416).
39. ' Malik Asad All v. K.B.C.A. And others (1999 SCMR 2883).
40. ' In the case of Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 502).
41. We are thus of the view that in the present day situation the concept of an aggrieved person has to be broad based. It would be essential for the Courts to verify and ascertain that under no circumstances the petition should reflect or indicate mala fide. If indeed certain individuals or groups have over the years proved their bona fide for championing the cause connected with certain aspect of the city and which cause has been recognized earlier in several petitions filed under Article 199 of the Constitution then cognizance should be taken of their pleas and after notice to the other side decisions should be given on merits. This does not mean that the petitioner or petitioners should enjoy a carte blanche as they should also be fully aware that the respondents are equally citizens of this country enjoying their own individual rights and any attempt to usurp those rights without justification can hold the petitioner vulnerable serious charges. With these observations we are of the view that the petition is maintainable and it should be fixed for hearing.