1. S. AHMED SARWANA, J.--- Mr. Jafri has received a copy of this Application and waives notice of the same.
2. On 9-5-1997. the petitioners who are residents of a building adjacent to Plot No.47, Shah Abdul Latif Bhittai Road, Lyari Karachi filed this petition against respondents Nos.1 to 4, alleged owners/builders of Plot No.47, Shah Abdul Latif Bhittai Road, Karachi, Respondent No.5 (Karachi Building Control Authority), respondent No.6 (Karachi Metropolitan Corporation) and respondent No.7 (Government of Sindh) seeking a declaration that the construction of the multi-storied building on Plot No.47, Shah Abdul Latif Bhittai Road, Lyari Quarters Karachi was unauthorized, illegal and against the approved Plan and Building Regulation and an injunction restraining respondents Nos.1 to 4 from carrying out further construction and an order to respondents Nos.5 and 6 to demolish the unauthorized structure and construction.
3. On 16-2-2000 after hearing all parties, considering all the facts including the Commissioner' s/Nazir s various reports of site inspection and the relevant law relating to the unauthorized construction raised in violation of the approved building plan, the Court came to the conclusion that the respondents Nos.1 to 4 (builders) had raised construction in violation and contravention of the Karachi Building and Town Planning Regulations on Plot No.47, Shah Abdul Latif Bhittai Road, Lyari, Karachi and consequently K.B.C.A. was directed to perform its statutory obligation with regard to the removal/demolition of the unauthorized construction raised on the Plot in violation of the approved Building Plan in accordance with the provisions of section 7-A of S.B.C.O., 1979 and submit a compliance report within a period of two months. On perusal of the Order Sheet, it appears that K.B.C.A. did not comply with the Order of the Court and did not demolish the unauthorized construction within the specified time as directed, whereupon a notice was issued to the Chief Controller Buildings to appear in person and explain the position. He submitted the reasons why the work could not be carried out which explanation was accepted and on 6-2-2001 after hearing all the parties present including the Advocate-General on behalf of the Government of Sindh, K.B.C.A. was directed to carry out its statutory duty with necessary support from the local administration which was promised by the learned Advocate-General.
4. On 13-2-2001 Mr. Ashiq Raza, learned counsel for the Intervenors, filed an application under section 12(2), C.P.C. (C.M.A. 829 of 2001) on behalf of 18 intervenors/applicants for setting aside the order, dated 17-5-2000 (actual date of order is 6-2-2001) and stay the operation of order, dated 16-2- 2000. After notice to the parties and hearing the counsels at length, the application was dismissed by a detailed order, dated 20-2-2001 wherein it was pointed out that the builders had been granted permission for construction of a building consisting of Ground plus two floors whereas they had constructed Ground plus five floors and had also raised construction on the compulsory open space by obtaining status quo order from a Civil Court and that the entire building was found occupied when the Nazir visited the building on 27-5-1999 indicating thereby that the Intervenors were in occupation of the flats in the building on the third, fourth and fifth floors during the Court proceedings as well as at the time the Petition was disposed .of on 16-2-2000. The Intervenors also did not produce the Occupancy Certificate required under section 6 of Sindh Building Control Ordinance, 1979, before occupation of the building. As no case under section 12(2), C.P.C. was made out indicating that any fraud or misrepresentation had been committed and that the order was bad for want of jurisdiction, the application was dismissed.
5. The same 18 Intervenors/Applicants have again filed this application under section. ,151, C.P.C. requesting the Court to stay the operation of this Court's Order, dated 16-2-2000 on the ground that the Intervenors have filed an application with K.B.C.A. for regularization as well as for Occupancy Certificate of the flats in dispute pending outcome of the application and has further prayed that the Order, dated 20-2-2001 be recalled. Mr. Raza submitted that the Construction of the additional three floors was not such a serious violation which could not be regularized by K.B.C.A. He added that the Intervenors had invested their whole life's savings in purchase of the said flats and on humanitarian grounds also their application deserved sympathetic consideration.
6. In reply, Mr. Jafri, learned counsel for K.B.C.A., submitted that the order of demolition was passed on 16-2-2000 after due consideration of all aspects of the matter and on 20-2-2001 the matter was considered again and no ground for grant of any relief on the application of the Intervenors was found by this Court as a consequence of which the Intervenors' Application (C.M.A. No.829 of 2001) was dismissed. The learned counsel further submitted that the Government of Sindh had imposed prohibition regarding regularization vide Government of Sindh, Services and General Administration Department Notification, dated 20-7-1998 and consequently no regularization of any unauthorized construction can now be permitted by K.B.C.A.
7. We have considered the arguments advanced by Mr. Raza, learned counsel for the Intervenors and those of Mr. Jafri, learned counsel for K.B.C.A. Under Regulation No.24 of Karachi Building and Town Planning Regulation, it is the builder who is required to submit an application for regularization of any deviation in the approved building plan and not the occupant of any premises which have been unauthorizedly constructed. It may be pointed out here that the power to regularize is intended and designed to be exercised when irregularity is of the nature which does not change the complexion or character of the original proposed construction as held in the case of Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512. In this case by addition of the three floors and covering the compulsory open spaces the entire complexion and character of the proposed construction has changed and, therefore, K.B.C.A. does not in our opinion has any authority to approve its regularization.
8. On perusal of the copy of the application alleged to have been filed by the Intervenors with K.B.C.A., it transpires that the same is incomplete as it does not contain the information required under Rule 24 of the Karachi Building and Town Planning Regulation for approval of unauthorized construction carried out by a builder alongwith a completion plan showing deviations made in the building plan from the sanctioned building plan through a licensed architect. The copy of the application has been signed in blank by the architect which shows the mala fide conduct of the architect also. The copy of the "notice of Completion and Permission for Occupation" alleged to have been filed by the Intervenors also contains the signature of the architect on the form is incomplete, consists of several blank spaces which are required to be filled and does not contain the signature of the builder who is the proper person to file the application. It is, therefore, clear that the said application is mala fide and has been filed to make out a deceptive basis for the present application after dismissal of the previous one (C.M.A. 829 of 2001) on 20-2-2001 and thereby obstruct K.B.C.A. in the performance of its statutory duty and delay the demolition of the illegal construction ordered by this Court as far back as 16-2-2000.
9. The argument of Mr. Raza that construction of additional three floors is not a such serious violation which cannot be regularized is based upon ignorance of law and lack of proper research. Had the counsel read the Sindh Building Control Ordinance, 1979, the Karachi Building and Town Planning Regulations and the Judgments of the Honourable Supreme Court of Pakistan and this Court on the question of regularization, he would not have advanced such an argument. Further, by advancing the above argument the Intervenors have admitted that the three floors have been constructed in violation of law which they have purchased. Mr. Raza should know that the Courts do not come to the rescue of a person who has committed a wrong or violated any law. His other argument that the intervenors had invested their whole life's savings in purchase of the said flats and the Court should therefore, consider their application sympathetically again appears to be based upon ignorance of law. Under the principle of Caveat emptor it was the duty of the Intervenors to have verified the title of the vendor/builder before purchasing and occupying the premises. As the builder had constructed three floor in total violation of the approved Building Plan, Karachi Building and Town Planning Regulations and the provisions of the Sindh Building Control Ordinance, 1979, he acquired no title therein and consequently could not transfer any title in respect of the flats on the said three floors to any person and any sale agreement in respect thereof would be void under section 23 of the Contract Act, 1872 being violative of the provisions of S.B.C.O., 1979. consequently the Intervenors would not have any enforceable right or title in the premises purchased by them on the second, third and fourth floors of the Building in question.
10. Muhammad Saleem v. Administrator, K.M.C., 2000 SCM R 1748.
11. It also appears from the documents filed and the arguments advanced by the learned counsel that the intervenors at the time of purchase of flats did not act prudently by not engaging qualified lawyers who would have safeguarded their interest. Therefore,, they should have no cause for complaint for their own negligent conduct. In case they did engage Advocates then their remedy for the loss suffered by them is against their Advocates who acted negligently in doing their duty to their clients. Bashir Ahmed v. Government of Punjab and others 1985 SCM R 333. Mr. Raza should know that the Courts cannot ignore statutory law and judgments of the superior Courts in the administration of justice and pass orders on compassionate grounds in favour of a party who may have suffered financially by the acts of another person on account of his own negligent conduct. In the present case, the Court passed a considered Judgment on 16-2-2000 in accordance with the dictates of law which must be enforced by the executive organs of the State.
12. It has become a common practice that after a final Order/Judgment has been passed by a Court requiring demolition of unauthorized construction, people often file applications as Intervenors claiming relief on the ground that they were not aware of the proceedings and were consequently condemned unheard or that their right to be treated equally guaranteed by the Constitution is being violated by ordering demolition of their unauthorized construction when hundreds of unauthorized constructed buildings in the city remain unnoticed and untouched without any action by the authorities concerned. It is like the claim of the criminals for acquittal on the ground that other criminals are not being punished Muhammad Usman v. K.B.C.A. 2000 CLC 925. It is surprising that' Mr. Raza does not know that two wrongs do not make one right. The argument that there are hundreds of buildings existing in the city which have been constructed in violation of the Building Laws and no action has been taken against them by the authorities does not mean that where violation of law is detected and brought before the Court, no action should be taken against the violator on the ground that other violators have not been punished. The violator of law when brought before the Court will have to undergo the process of law and face the consequences therefor in accordance with law, if found or proved guilty of violation. Such person must not be allowed to delay or frustrate the implementation of Court orders and judgments. If such misconduct is overlooked or permitted unchecked, it would disturb the entire equilibrium of society, create law and order situation resulting in total anarchy in the country which cannot be allowed under any circumstance.
13. The application under section 12(2), C.P.C. filed by the same 18 Intervanors was considered on merits and was dismissed by this Court on 20-2-2001. The Intervenors/Applicants should have asked the builder to file an application with K.B.C.A. for regularization before buying the flats or while the Constitution petition was pending and should have mentioned this fact when they filed the application under section 12(2), C.P.C. but they did not do so. They cannot now be allowed to file a fresh application under a different section namely, section 151, C.P.C. seeking the same relief on the frivolous ground of having filed an application for regularization which is apparently not maintainable in law. The application is prima facie mala fide and vexatious and does not merit consideration.
14. It is well-established that Advocates are officers of the Court (Ja Ahmed and others v. Muhammad Ishaq and others, PLD 1972 Kar. 341 and Muhammad Yaseen Khan v. Azad Government of Jammu and Kashmir, 1991 M LD 2295 and their duty to the Court has precedence over their duty to the client.
15. (Muhammad Siddiq v. Mst. Ruqaya Khanum, PLD 2001 Kar. 60). Further, it is the duty of counsel to research the relevant law thoroughly and advise their clients honestly. When a counsel sings, files or submits to the Court any application it is assumed that the application is not being presented for any improper purpose, such as to harass or to cause unnecessary delay, that the legal contentions therein are warranted by existing law and is not contrary to the clear provisions of the statute and the established law and practice. Had the Counsel done his research properly he would have come to the conclusion that the Intervenors had no right whatsoever in the property as discussed above and would not have filed this application. It would not be out of place to mention here that if a Counsel succumbs to temptation of money offered by a client and takes up a brief without ascertaining true facts and researching the law he would be deemed to be a party to the vexatious claim and his duty to the Court would be subordinated to his duty to his client..
16. (Muhammad Dawood Khan v. Elyas Ameen, PLD 2001 Kar. 20). In view of the above narration of facts and clear state of the law, it is crystal clear that the present application is patently mala fide and vexatious not.only to the knowledge of the Intervenors but also of the Counsel who should have advised his clients accordingly and not filed the same. Consequently, the application is dismissed with special costs of Rs.2,000 to be paid by each Intervenor within 30 days. As the Counsel did not advise his clients properly and filed a frivolous application, he is equally responsible for the consequences of the mala fide and vexatious application. The costs shall, therefore, be shared between the counsel and his clients equally i.e. one half of the costs shall be paid by the Co-unsel and other half shall be paid by the party. Mr. Jafri states that the costs instead of being paid to him be deposited with the Nazir of this Court who may be directed to utilize the same for meeting the expenses of the High Court Clinic. Ordered accordingly.
17. Office is directed to advise the Nazir to submit his report of deposit of the amount in Court on 10-4- 2001.