1. For hearing of C.M.A. No. 10017 of 1999.
2. SARMAD JALAL OSMANY, J. - This is an application under Order I, Rule 10(2), CPC praying that the Inventor M/s. Sheri C.B.E., a leading Non-Governmental Organisation (NGO) be made a party to the suit on the basis that it is most active in the environmental area and has been successful in preventing buildings in the City being constructed contrary to the notified development schemes and the laws relating thereto. A further ground taken in the main body of the application is that the Intervenor has detailed knowledge regarding the working of the defendant viz. K.B.C.A, and would be able to assist this Court in properly adjudicating the matter. In the affidavit filed in support of the application the objectives of the NGO have been repeated. More particularly it has been stressed that there is a cut line on Nicol Road, (Aiwan-e-Tijarat) which has been suppressed by the defendant and which finds support from the chronology of events attached to the application as Annexure 'C'. This would demonstrate the existence of such cut line for the purpose of widening Nicol Road on the site of the suit property which is in the larger interest of the residents of Karachi and which at present is not being adhered to by the plaintiff.
3. In the counter-affidavit filed in response to this application the main objection which has been taken is that the same is frivolous as the issue of the cut in was never raised by the K.B.C.A, before approval of the plaintiff's building plan or in fact even after such building plan was' disapproved and now this issue is being raised merely to delay the proceedings. Similarly, it has been asserted in the counter-affidavit that the facts disclosed in the affidavit as well as the documents annexed thereto are not at all relevant for the purpose of deciding the issues involved in this case, spice in fact the sole issue raised by the Intervenor viz. Existence of a cut line in a non-issue and cannot legally be raised on the site by K.B.C.A. Or by any other person/organisation since Nicol Road is not included in the road widening scheme of K.B.C.A, or any .Other authority as the same is not mentioned in Schedule 'G' of the Town Planning Regulation, Part II which overrides every other map/plan, etc. A copy of a letter, dated 3rd May, 1989 has been filed along with the counter- affidavit which is addressed to the Mayor of Karachi by the Director-General, K.D.A, enclosing a copy of the relevant regulations pertaining to the road widening scheme which does not include Nicol Road on which the suit property is located.
4. A Rejoinder has been filed to be the said counter-affidavit in which it has been reiterated that the Intervenor is fully committed to the environmental issues and protection thereof and consequently and violation of any building law or controversies arising thereto are the precise issue which the Intervenor has been addressing for the purpose of their rectification, etc. Reference has been made to the documents filed in support of the Intervenor'^ application which adequately establish that there is a road, widening scheme as far as Nicol Road is concerned, and where the Intervenor can be of assistance to this Court regarding the said scheme as demonstrated, it should be made a party.
5. Based on the above facts and circumstances Mr. Kazim Hassan learned counsel for the Intervenor has argued that the main case of the plaintiff in the counter-affidavit, that since the issue regarding the cut line was never addressed by the K.B.C.A, either at the time when the plaintiff's building plan was approved or when this was subsequently disapproved, is precisely the reason why the Intervenor wants to become a party to the suit. Learned counsel submits that the defendant cannot be entrusted with the protection of the environment in the city and hence the Fundamental Rights of the residents of this city to enjoy a neat and clean environment as well as to ensure that the laws relating to construction of buildings are complied with. In support of his contentions learned counsel has relied upon Ardeshi Cowasjee v. K.B.C.A. (1999 SCMR 2883), as well as the decision of a learned Single Judge of this Court in Suit No. 648 of 1999, whereby the Intervenor's application to be joined to the proceedings was granted on the basis that said Intervenors were residents of the area and had an interest in ensuring that the plaintiff's proposed construction would not infringe upon their rights.
6. On the other hand, Mr. Abid Zuberi, learned counsel for the plaintiffs had drawn a distinction between joinder of parties in a writ and in suit.
7. According to the learned counsel any person/organisation seeking to be joined as a party to a suit must display and establish strict legal rights before it is allowed to do so whereas in a writ a party may join the proceedings on the basis of a mere interest therein and need not establish strict legal right in the matter. Learned counsel has stressed in this regard that in the case of Ardeshir Cowasjee v. K.B.C.A, {supra), it was held that even a person who was not living in a particular locality had locus standi to file the petition which impugned the construction of a building in an area designated for a public part on the reasoning that all the residents of Karachi and for that matter even visitors to the city had an interest to ensure that designated public recreation areas were not encroached upon and buildings built thereon which were not allowed by the law. Learned counsel has referred to Abdul Waheed Butt v. Mrs. Asma and 4 others (1989 CLC 1936). For the above-mentioned proposition and also to Suleman Mala v. K.B.C.A. (1990 CLC 448) which. Draws a1 distinction between writ petitions and suits as regards the maintainability of the same by various classes of persons and organisations. As regards the ingredients of Order I, Rule 10, CPC learned counsel has referred to the Pakistan Banking Council v. Ali Mohteram Naqvi (1985 $CMR 714), Altaf Farekh v. Elements Construction Company (1992 CLC '700) and Hakim Ali v. Additional Settlement Commissioner (1981 CLC 1539). Learned counsel has also relied upon the order passed by a learned Single Judge of this Court in Suit No. 55 of 1996, whereby the Intervenor's application was rejected on the basis that a pro bono public who is not resident of the area or is not in a position to show how he is directly effected by the proposed construction should not be made a party to the proceedings.
8. I have heard both the learned counsel and my conclusion are as under:- There is no doubt that the consideration for joinder of partes to suits and writ petitions operate in different spheres. In a writ petition, it is sufficient to show that the Intervenor or the petitioner has an interest in the matter which may not be strict senso a legal right. Accordingly, in Shehla Zia v.
9. WAPDA (PLD 1994 SC 693) the Hon'ble Supreme Court had entertained a direct petition under Article 184(3) of the Constitution on the basis that the issues raised therein involved the Fundamental Rights of the petitioners as provided in Article 9 of the Constitution viz., that no person shall be deprived of life or liberty save in accordance with law. In the said petition the petitioners who were residents of a thickly populated area in Islamabad had assailed the construction of a Grid Station by WAPDA in the said area on the basis that exposure to the hazards of electro magnetic fields generated by grid stations constitute a threat to their life which was upheld by the Hon'ble Supreme Court and the writ allowed. Similarly, in Ardeshir Cowasjee v. K.B.C.A. (1999 SCMR 2883), the Hon'ble Supreme Court upheld the locus standi of the appellants who were resident of Karachi to impugn the construction of a building near the Clifton Beach in an area Which was designated as a public part. In fact the Hon'ble Supreme Court even went on to observe that Clifton Beach is a place of recreation not only for the citizens of Karachi but also for visitors to the city thus indicating that perhaps even such persons would have an interest in ensuring that the law is followed as far as"cases of public interest litigation are concerned as the one-with which the Hon'ble Supreme Court was seized, off. The Hon'ble Supreme Court, therefore, came to the conclusion after referring to a number of cases decided by the apex Court that for maintaining a proceeding, in writ jurisdiction it is not necessary that a writ petitioner should have a right in the strict jurist sense, but it is enough if he discloses that he had a personal interest in the performance of the legal duty which if not performed of performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise. Accordingly the Hon'ble Supreme Court upheld the right of the appellants to maintain the appeal as Well as the petition before the High Court.
10. Similarly, a Division Bench of this Court in Suleman Mala v. K.B.C.A. (1990 CLC 448) also came to the conclusion that for the purpose of maintaining a petition strict legal rights in the jurist sense of the word need not be displayed but if it were demonstrated that the petitioners had some interest which if not addressed would give rise to a grievance a petition was maintainable. A similar .Conclusion was reached by another Division Bench of this Court in Abdul Waheed Butt v. Mrs. Asma (1939)
11. It now remains to be seen whether Intervenors who are admittedly an NGO dedicated to the cause of a better .Environment in the city of Karachi and more particularly to ensure that buildings are constructed in accordance with the laws, rules and regulations thereto can be made a party to the suit. On the basis of the ap under consideration. In this respect it would be seen that Order I, Rule 10(2) (which is a beneficial provision for the purposes of curtailing litigation) contemplates two categories of parties who may be joined to a suit, the first one being a necessary party who ought to have been joined and in whose absence no effective adjudication can take place or decree passed. The next category is that of a proper party whose presence is necessary- before the Court in order to completely and effectually adjudicate upon and settle all questions involved in the suit.
12. The purpose of this rule being to avoid the embarrassment of the trial by the simultaneous investigation of totally unconnected controversies. In this respect it appears that both a proper and a necessary party must display a right or interest in the proceedings as understood in the strict juristic sense of the term as held in Suleman Mala v. K.B. C.A. And Abdul Waheed Butt v. Mrs. Asma and 4 others (supra). However, display of such right or interest cannot be circumscribed in a cut or dried manner and each case would have to be considered upon its own merits. In this regard it would be seen that in any civil suit before a Court if an Intervenor lays before the Court any issue or material which had not been raised or brought before the Court by the parties to the suit but would be necessary to effectually and completely determine all questions between the parties then such a intervenor would fall into the category of a proper party. However, such material should not extend the scope of the controversy between the parties or add a new cause of action unconnected with the original cause of action so as to embarrass the trial of the suit by the simultaneous investigation of unconnected controversies. Consequently, in my view, the issues before this Court-are, in relation to this application, whether the Intervenor has displayed a right or interest in the suit and if so whether its presence is necessary to effectually and completely determine all questions between the parties viz. Whether it is a proper party. This proposition is based on the assumption that seen from any angle the Intervenor is not a necessary party and as much as been admitted by Mr. Kazim Hassan.
13. As regards the first test it would be seen that in the context of a proper party the right or interest to be displayed perhaps exists on a lower plane than that in the case of a necessary party. Such a conclusion, in my opinion, is readily ascertainable from the very wording of Order I, Rule 10(2), CPC which defines a necessary party as one who ought to have been joined which has been held in a number of cases (supra) to mean a party in whose absence no effective adjudication can take place or decree passed. On the other hand a proper party is one whose presence before the Court is necessary in order to effectually and completely adjudicate upon and settle all the questions involved in the suit. In fact, as has been well-settled, no relief need be prayed for against a proper party. This does not mean of course that a proper party need only display a passing interest in the suit so as to qualify for joinder. On the contrary it would have to establish a right or interest in the proceedings albeit, not of the same quality, category or nature as that of a necessary party. In the present case, the Intervenor is admittedly an NGO which is committed to a better environment in the city of Karachi and particularly to ensue that buildings are constructed in accordance with the applicable rules and regulations and in this regard it perhaps represents the collective right of the residents of this city to a better environment which can be equated to the right to life as enshrined in Article 9 of the Constitution of this country. The Intervenor's case is that the plaintiffs' Building is not being constructed in accordance with the rules, more particularly .That it does not cater to the cut line which has been designated on Nicol Road for road widening purposes as per law which is vehemently countered by the plaintiff. In my view this is a sufficient display of a right or interest in the suit by the intervenor to satisfy the first test formulated above in order to be joined as a proper party as it is the inalienable right of every resident of this city to ensure that buildings are constructed in accordance with the law particularly with regard to road widening projects and this can be equated to the right to life. Seen in this light, particularly in public interest litigation cases, the right or interest to be displayed by a proper party need not to be a strict legal right. It would be sufficient, if it were established that which party had an interest in the performance of a Legal duty which if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty of franchise (To use the words of Hon'ble Supreme Court in Ardeshir Cowasjee v. K.B.C.A, (supra). Of course, it goes without saying that such road widening projects should be demonstrated to be sanctioned by law and that the construction of the proposed building is in violation thereof.
14. As regards the second test viz. Whether the Intervenor's presence is necessary in order for this Court to effectually and completely determine all, questions, between the parties. Mr. Abid Zuberi for the plaintiff has vehemently asserted that the issue of the cut line was never raised by the plaintiff nor by the defendant in the present proceedings and in fact is a non-issue and hence on this score along there is no need for the intervenor to be present before the Court. In this regard the pleadings of the parties would have to be examined to resolve this issue as it relates to the second test formulated above viz. Whether the Intervenor presence is necessary to effectually and effectively determine all questions raised between the parties.
15. It would be seen that the plaintiffs' case is essentially for a declaration from this Court to the effect that the defendant's letter dated 10.3,1999 rejecting the plaintiffs' proposed revised plan is unlawful and mala fide and concurrently for a declaration that the said plan complies with the law. In the written statement filed on behalf of the defendant it is maintained that the revised building plan was correctly cancelled, as it was not in accordance with the sanctioned plan and some irregularities have been pointed out for example, length of chamfer, etc. I had tried to resolve the differences between the parties by asking for a statement from Mr. M. Naeem-ur-Rehman, learned counsel for the defendant as to the precise objections which the defendant had to the, revised building plan presented by the plaintiff. In response to this direction the said statement was filed in Court on 22nd of July, 1999. It is significant to note that the issue of the cut line was neither raised in the plaint nor in the said statement but however, has been raised for the first time by the defendant in C.M.A. No. 960 of 1999 filed in Court on 15.11.1999 and along with the said statement the record of the K.M.C, and K.D.A, with regard to the road widening of Nicol Road and other roads in the area along with the correspondence have been attached. In the present application a complete chronology of events has been given as regards road widening scheme in the area of the plaintiffs' building along with photographs of drawings and maps, etc. In my view, therefore, although initially the issue of the cut line was not raised by either of the parties to the proceedings, it was raised at a subsequent stage by the defendant through C.M.A. No. 9600 of 1999 and moots the question as to whether or not construction of the plaintiffs' building is violative of the future road widening scheme as per law. The defendant has, therefore, raised a question which needs to be adjudicated since it has been countered by the plaintiff and the Intervenor has displayed that its presence is necessary to effectively and completely determine the said question by virtue of the various documents attached to the application a perusal of which would prima facie indicate that perhaps there was a cut line on Nicol Road where the present construction is being carried out by the plaintiff. In my view once the question of the cut line has been raised by the defendant and countered by the plaintiff and the Intervenor has displayed an interest as well as prima facie established that its presence would be necessary to determine the said question, there is no reason why it should not be joined as a party since this would not either add a new cause of action or embarrass the trial by the investigation of. Unconnected controversy. As regards the recent cases cited at the Bar involving the issue of joinder of public spirited individuals in building construction cases, it would be seen that in Suit 648 of 1999 learned brother Mushtaque Ahmad Memon, J. Had allowed such individuals to be joined on the basis that they were residents of the locality and had a right to ensure that the proposed construction was carried out in accordance with the law. He also held that the Intervenors had demonstrated that their presence was necessary to completely and effectually determine the questions between the parties which had been raised by the plaintiff itself. I respectfully agree with my learned brother. However, I would add that in proper cases like the one at hand, where the public interest is involved a proper party need not only be the rt idems of the area but others who would be affected. As stated above in cases of public interest litigation like the present one the harshness of the strict legal test as to a right or the interest displaced by a proper party is to be mitigated provided the other test as to its presence for the. Purpose of effectually and completely resolving the questions between the parties is satisfied the latter of course being strictly construed.
16. There are the reasons for the short order dated 10.12.1999, allowing the application. The plaintiff shall amend the title page of the plaint by adding the applicant as a defendant. Written statement to be tiled by the Applicant/Intervenor within two weeks.
17. For hearing of C.M.As. Nos. 3035 and 6078 of 1999.
18. C.M.A. No. 3035 of 1999 is an application under Order 39, Rules 1 and 2, CPC tiled on behalf of the plaintiff praying that the defendant No. 1 viz. K.B.C.A, be restrained from sealing or demolishing the suit property or interfering in the construction thereof as well as from implementing the impugned letter dated 10.3J1999 addressed to the plaintiffs from K.B.C.A, and taking any adverse action in respect thereto until the disposal of the suit. On the other hand C.M.A. No. 6078/99 has been tiled on behalf of K.B.C.A, praying that the plaintiff be restrained from carrying out any construction in the suit property as well as transferring any unit therein till the decision of the suit. As both these applications agitate the same issues and facts as regards the present suit I propose to dispose them of through this common order.
19. The brief facts of the matter as per the plaintiffs are that they are the owners/builders of the suit property commercial Plot No. 10/2, Sheet No. SR-11 of Serial Quarters, Karachi admeasuring 1560 sq.
20. Yds. The plaintiffs had applied to the K.B.C.A, for approval of their building plan for construction of a commercial building thereon consisting of basement plus ground plus two floors for car parking and two upper floors which was forwarded to the K.B.C.A, through the A.C., Karachi South vide letter dated 5.7.1997 a copy of which has been Annexure P/2 to the Plaint. The said building plan was approved by the K.B.C.A, vide their letter dated 29.8.1997 a copy of which has been filed as Annexure P/3 subject to the conditions mentioned therein not the least of which being condition No. 4 that construction shall not be started before N.O.C, of D.C.O, (structures) and final approval is- granted. Thereafter, the plaintiffs applied for and got the approval of the building plan tor basement plus ground with l/3rd loft, first floor for shops, second, third and fourth floors for parking and fifth to sixteenth floors tor offices vide approval letter dated 16.11.1997 and approved building plan which have been filed as Annexure P/4 and P/5 to the Plaint respectively. Then the construction of the building was started in accordance with the approved building plan when suddenly a notice dated 25.5.1988 was received from the K.B.C.A, requiring the plaintiffs to stop the construction on the allegation that the required N.O.C, from K.W. & S.B. And KESC had not been obtained. The plaintiffs were further required to rectify the construction and provide the approved drawings from D.C.B.v (structure) of the K.B.C.A, regarding the physical strength of the columns. A copy of the notice has been annexed to the Plaint as Annexure P/9. Again a notice dated 27.8.1998 was received from K.B.C.A, a copy of which has been filed as Annexure P/9 to the Plaint, advising the plaintiffs to stop the construction on the suit property otherwise the same would be sealed and the building demolished. Such notice wa$ sent on the basis that the construction was against the approved building plan, the roof projection was beyond the prescribed limit and the chamber was not laid out as per the approved building plan. The plaintiff replied to the notice to the effect that they were under the process of resubmitting their-plans tor the violations as pointed out by K.B.C.A.
21. A copy of such reply is filed as Annexure P/ll to the plaint.
22. Thereafter, the plaintiffs challenged both the notices issued by K.B.C.A, viz. Dated 25.8.1998 and 27.8.1998 by filing Suit No. 1094/98 before this Court in which the operation of these impugned letters was suspended by order dated 2.9.1998 a copy whereof is filed as Annexure P/13. Both the parties in Suit No. 1094 of 1998 agreed that the approved building plan would be considered by K.B.C.A, and this was accordingly done whereafter some objections were filed by K.B.C.A. Ultimately an undertaking was filed in Suit No. 1094 of 1998 by both the parties that the plaintiffs agree to raise the construction in the stilt property in accordance with the approved plan and would rectify any changes if necessary as per law. A copy of the order disposing of Suit No. 1094 of 1998, dated 11.12.1998 has been filed as Annexure P/24.
23. Thereafter, the K.B.C.A, rejected the plaintiff's proposed building plan vide letter dated 10.3.1999 which according to the plaintiff is mala ^ fide exercise and beyond the jurisdiction of-the K.B.C.A. A copy of the letter dated 10.3.1999 and reply of the plaintiff dated 5.4.1999 have been filed with the plaint as Annexures P/26 and P/27. Consequently, it is the plaintiff's case that such rejection was done in an arbitrary, mala fide and capricious manner and the impugned letter be declared as such and that the plaintiff's proposed building plan be accepted as being in accordance with the law viz. Sindh Buildings Control Ordinance, 1979 and Karachi Building and Town Planning Regulations. Similarly, a permanent injunction has been sought against the defendants from demolishing the construction so far raised in the suit property. In the written statement filed by the K.B.C.A, certain preliminary objections have been raised as regards non-service of notice under Section 21-A of the Sindh Buildings Control Ordinance, 1979, non-maintainability of the suit under the Specific Relief Act, etc. As to the merits of the- case it is stated that since the plaintiff have raised the construction in violation of the approved building plan dated 14.11.1997 and the same having been rejected by letter dated 10.3.1999 the plaintiffs have no locus standi to approach this Court for any relief whatsoever. In fact the gist of the written statement is that the K.B.C.A, is well within its rights to disapprove the proposed building plan submitted by the plaintiffs as this was done according to the law viz. Karachi Building and Town Planning Regulations (hereinafter, Regulations'). In the counter-affidavit filed in response to C.M.A. No. 3035 of 1999 the contents of the written statement are reiterated and it has been prayed that he said C.M.A, filed by the plaintiff should be dismissed.
24. Subsequently, as per C.M.A. No. 9601/99 the K.B.C.A, has prayed that certain additional documents be taken on the record as per copies annexed to the said application in order to establish that the plaintiffs' plot would have to be brought in line with the road widening scheme which has been sanctioned on Nicol Road which faces one side of the said plot. This of course has been very vociferously contested by the plaintiffs on the basis that the documents annexed along with C.M.A.
25. No. 9601/99 cannot be considered for the alleged road widening scheme of Nicol Road as these documents are very old dating back to the year 1927 and in any event since Nicol Road is not included in such scheme qs per the Regulations the said documents are irrelevant.
26. In order to narrow down the controversy between the parties I had directed Mr. Naeem-ur-Rehman on 21.7:1999 to place the reasons in writing whereby the order dated 10.3.1999 was passed in K.B.C.A, rejecting the plaintiffs' building, plan. Such statement was filed by Mr. Naeem-ur-Rehman on 22.7.1999 in which the detailed reasons and Objections were given and thereafter the plaintiff agreed to remove most of such objections. However, as regards the objection pertaining to N.O.Cs., from the utility services viz. Issuance of conditional N.O.Cs. Mr. Abid Zuberi, learned counsel for the plaintiffs had submitted that such conditional N.O.Cs. Are issued and it is beyond the plaintiff's power to get confirmed undertakings from the utility services for the installation of the utilities viz. Power, Gas, Water and Sewerage. The other objections which have been highlighted by Mr. Naeem- ur-Rehman are the firstly the Chamfer is not according to the original approved plan, the pillars of the building have been relocated which would effect the load-bearing capacity of the same and thus endanger the building in question and finally that the building has to be set back in order to cater for road widening of Nicol Road. Consequently, both the learned counsel have confined themselves to the following objections of K.B.C.A, as regards the construction on the suit property:
(a) Whether the demarcation of the plot violates the road widening scheme of Nicol Road and consequently would have to be set back so as to cater for the same?
(b) Whether the Chamfer as existing is not in accordance with the approved building plan and if so whether the same could be regularised?
(c) Whether the pillars of the building are not in accordance with the approved building plan and consequently endanger the building in their present position and if sn amid their present position be regularised too?
(d) Whether the conditional N.O.Cs. Obtained by the plaintiffs vis- a-vis the utility services are not in accordance with law which would give aright to K.B.C.A, to reject the same?
27. In support of his arguments Mr. Abid Zuberi learned counsel for the plaintiffs has submitted that as regards the setting back of the plaintiff's building in order to cater for the widening of Nicol Road, it is too late in the day to agitate this issue since this should have been done initially before the plaintiffs were allowed to lay the foundation of the building and start construction thereon. In this regard learned counsel has referred to certain documents' on the record to establish that the concerned authorities had never raised any objection on this issue i.e., the area of the suit property and its lay out viz. Site plan of the suit property attached to Annexure P/l filed by the plaintiff along with rejoinder to C.M.A. 3035/99, Annexure P/2 to such rejoinder, Annexure P/5 filed by the plaintiffs along with the counter-affidavit to C.M.A. No. 8706/99 which is an application under Order 18, Rule i8 for site inspection and Annexure P/6 also tiled along with such counter-affidavit both of which are letters from K.B.C.A, to the effect that the construction on the suit property would not in any way affect the road widening scheme of Nicol Road and Grant Road on the corner of which the suit property is located. Secondly learned counsel has submitted that as per the Nazir's Report the entire wide of Nicol Road from Shahra-e- Liaquat to Grant Road is around 30', although that portion of the plaintiff's plot which is facing Nicol Road is set forward from the building line of the Chamber of Commerce which according to the learned counsel is compensated by the setting back of the boundary of the Sindh Madrasah facing the suit property. Consequently, learned counsel says that the width of Nicol Road viz. 30' is being maintained constantly throughout its length from Shahra-e- Liaquat to Grant Road. Learned counsel's next argument is that the document produced by K.B.C.A.
28. As per C.M.A. No. 9601/99 pertain to the year 1928-30 and have been issued by K.M.C. As per learned counsel although such documents may propose that originally Nicol Road should have been 50 wide, such proposal cannot override the actions taken by K.B.C.A, which is the authority as far as the regulation of buildings is concerned. According to the learned counsel K.M.C, is not the authority in the area of the suit property since it belongs to the Government of Sindh through the Board of Revenue and has been given on 99 years' lease. In this regard learned counsel has referred to Annexure P/l to the Plaint which is an extract from the site survey and-there the area of the suit property is the same as in the plaintiff's approved and proposed plan. Finally learned counsel has submitted that Nicol Road does not at all find any mention in Schedule 'G', Part II of the Regulations which lists major roads under the road widening scheme. Learned counsel says that as such Regulations are issued under Section 21-A(3) of the Sindh Buildings Control Ordinance, 1979, therefore, they have full statutory cover. Learned counsel has relied upon Excell Builders v. K.B.C.A.
29. 1999 SGMR 2089, wherein the maps, etc.-, produced in support of the encroachment by the appellants on Abdullah Haroon Road in front of their building were not considered but the law was allowed to take its own course viz. Part II Schedule 'G' of the Regulations. Finally learned counsel has submitted that requiring the plaintiff's, to set back their building would be discriminatory where other Buildings on Nicol Road towards I.I. Chundrigar-Road are not given similar treatment viz. Muhammadi House and Pizza Hut." In fact Nicol Road in between these two buildings is only 27 feet wide as per the Nazir's Report.
30. As regards the bo-objection certificates from the concerned utilities viz. Sui Southern Gas Company, K.E.S.C. K.W. & S.B. And Pakistan Telecommunication Corporation, learned counsel has Maintained that such N.O.Cs. Are normally being issued and are only confirmed after the building plan has been finalised as per the comments filed by these Companies. He has also submitted that other buildings adjoining the suit property are even higher and there is no problem in the area as regards water and sewerage. As regards the no objection from the Sui Southern Gas Company, learned counsel says that no1 gas connection is required by the plaintiffs and thus, there is no need for such certificate.
31. Next as regards the location of the pillars learned counsel says that although their position does not conform to the original approved plan but this deviation can be regularised in terms of Regulation I6 of the Regulations as it is compoundable interims thereof. In support of his contention learned counsel has referred to, the case of Ardeshir Cowasjee v. K.B.C.A. (1999 SCMR 2883); Asma Builders v. Government of Sindh (1993 CLC 326) and Muhammad Shams Erum Usman v. K.B.C.A.
32. (1989 CLC 193), learned counsel has distinguished the case of Ardeshir Cowasjee v. K.B.C.A, (supra) on the basis that there the facts were different and the reasons why the Hon'ble Supreme Court came to the conclusion that the proposes building was unlawful was due to the fact that utilisation of the plot in question was changed from an amenity plot into a commercial one which changed the nature, character and complexion of the proposed construction which is not the case in trie present matter.
33. Lastly as regards the Chamfer, learned counsel says that originally as per the approved plan its dimensions were 9' x 9' and it is 6' x 6' as constructed. This again is compoundable as it comes within the mischief of Regulation I6 of the Regulations, Part II, Schedule 'G'. So also learned counsel has submitted that as Chamfer is not required for crossings on one was streets as in the present case since-Nicol Road is one way starting from Bundar Road to I.I. Chundrigar Road and Grant Road is also one way uptill its crossing with Nicol Road. Similarly learned counsel has contended that as per the said Regulation even on two ways street if (he speed limit is 25 k.m. Per hour or below no Chamfer is required. Learned counsel has emphasised that as a matter of common sense a Chamfer is only required on road intersections in order to enable drivers of vehicles to view the traffic coming from the opposite side so as to avoid accidents and which would not be possible if there were blind corners/crossings.
34. Mr. Naeem-ur-Rehman, learned counsel appearing on behalf of the defendant No. 1 has on the other hand submitted that firstly as regards nonlisting of Nicol Road in the Road Widening Scheme appearing in Schedule 'G' of the Regulations the K.M.C, is the concerned authority in the area of the uit property as per Schedule 'A' of the Regulations Part II and not K.B.C.A; Therefore, as per learned counsel non-listing of Nicol Road in the said regulations is of no consequence since. K.M.C, had already issued the scheme of road widening although in 1930 but it still holds good to date.
35. Consequently, learned counsel has submitted that in terms of Regulation 16(2)(c)(d) of the Regulations any obstruction to road widening schemes are not at all compoundable. In support of this proposition learned counsel says that where a building is constructed in violation of a road widening scheme the building line has to be set back as happened in Excell Builders v. Ardeshir Cowasjee (supra). Learned counsel has further cited K.B.C.A, v. Abdul Razzak (PLD 1994 SC 512) which has been confirmed by the Hon'ble Supreme Court in the case of Ardeshir Cowasjee v.
36. K.B.C.A, (supra) tor the proposition that no deviations can be made to the approved building plan unless the same is sanctioned by the Regulations. He has further relied upon Feroza Hajiani v. Abdul Razzak (1992 MLD 527).
37. As regards the location of the pillars, learned counsel says that these are. The foundations upon which the entire building rests and thus there can be no question of any deviation from their location as per the approved building plan and in this connection has referred to Abdul Razzak v.
38. K.B.C.A, (supra) and Ardeshir Cowasjee v. K.B.C.A, (supra). In any event as per learned counsel the question whether or not any deviation from the approved building plan of the pillars is permissible is a matter of evidence and cannot be the subjective matter of an injunction application. As regards trie Chamfer, learned counsel has submitted that this is an admitted deviation and cannot be regularised in terms of Schedule 'G', Part II of the Regulations whereby the dimension of any Chamfer should be at least 9 x 9 in the particular circumstances .Of the case.
39. Finally as regards the obtaining of conditional N.O.Cs. Learned counsel has submitted that as per the dictum of the Hon'ble Supreme Court in Abdul Razzak v. K.B.C.A, (supra) which was upheld in Ardeshir Cowasjee v. K.B.C.A. (supra) in the city of Karachi unbridled growth of multi-storeyed buildings without any consideration as to , available infrastructure facilities viz. Water, electricity, gas, sewerage lines, road, etc., has resulted in miserable living conditions for the residents of the the city. Consequently, as per learned counsel unless these problems are addressed in the context of the plaintiff's building it would adversely affect the allottees which is precisely what the Supreme Court held warned against and prohibited in the case of Abdul Razzak,. Therefore, it is imperative for the good of all concerned that the N.O.Cs. Should not be conditional and that they should be issued: by the concerned utility companies after having surveyed the availability of their services in and around the area Mr. Kazirn Hassan appearing for defendant No. 2 has adopted the arguments of Mr. Naeem-ur-Rehman.
40. In rebuttal Mr. Abid Zubedi has submitted that as regards the road widening scheme of K.M.C, which has been relied upon by Mr. Naeem-ur- Rehman, it is the Karachi Building Control Authority which has the final say in the matter and this has been upheld by the Hon'ble Supreme Court in Excell Builders vr K.B.C.A, (supra). As per learned counsel when the K.B.C.A, has not objected or rather cannot object since Schedule 'G' of the Regulations does not mention Nicol Road, therefore, there can be no question of compelling the plaintiffs to set back the cut line of their building so as to cater for the future alleged road widening Scheme of Nicol Road. In this connection learned counsel has traced the history of the Local Bodies Who were incharge of overseeing the construction of buildings and roads in the city of Karachi since pre-Partition days. He has submitted that initially the Karachi Municipal Act, 1933, was the first enactment to cater for the Municipal affairs of the city of Karachi whereunder the K.M.C, was established for this purpose which had the responsibility of road widening, etc. Under Article 205-C of the said Act the K.M.C, could widen roads and set back the cut line of the buildings after paying adequate compensation to the owners thereof. In 1950 the Karachi Improvement Trust came into being which,was followed in 1957 by the K.D.A. Act Article 85 of which prescribes the limits of street lines and building lines.
41. Subsequently, the Municipal Administration Ordinance of I960 repealed the Karachi Municipal Act of 1933 and again in 1972 the Municipal Ordinance, 1960 was repealed by the Local Government Ordinance, 1972. In 1979 the Local Government Ordinance, 1972 was repealed by the enactment of the Sindh Local Government Ordinance, 1979. Again in 1979 the S.B.C. Ordinance was passed whereby road widening scheme and cut lines was the sole responsibility ot K.B.C.A. Regulation 6 of- the said Ordinance in no uncertain term lays down that Building Regulations, K.M.C. Building Bye- Laws and the provisions in the Cantonment Act with regard to building control stand repealed.
42. Consequently, as per learned counsel it is only the K.B.C.A, which has the power to provide tor the setting back of buildings for the purpose of road widening and this has been upheld in Excell Builders v. K.B.C.A. (supra). Learned counsel has further submitted that as per the said case all the lay out plans/maps have to be discarded in view of the law which are the Regulations and as Schedule 'G' does not, mention Nicol Road based on the original K.M.C, plans. As regards the pillars learned counsel says that their new position can be regularised in terms of Regulation 16(2)(c) of the Regulations. In this connection he has referred to the case of Abdul Razzak (supra) for the proposition that as long, as the nature, character and complexion of-the approved construction is not changed and third party interests are not affected then K.B.C.A, has the power to regularise the deviations from the approved plan. As per learned counsel this is not the position in the present case since neither the nature, character and complexion of the building shall be changed by shifting the pillars and nor would any third party interest be effected thereby.
43. I have heard both the learned counsel and my conclusions are as follows:- As regards the first issue viz. The setting back of the plaintiffs building in order to cater tor the future widening of Nicol Road it would be seen that the Hon'ble Supreme Court in Excell Builders v. Ardeshir Cowasjee (supra) has made it quite clear that the Regulations have statutory force by virtue of Section 21-A, sub-section (3) of the S.B.C. Ordinance as earlier held in the case of Mutine Associates v. Ardeshir Cowasjee and others (PLD 1995 SC 423). The Hon'ble Supreme Court has further been pleased to hold that these Regulations are to be enforced by K.B.C.A, which is the Authority competent under the S.B.C. Ordinance to grant approval of a building plan and therefore K.B.C.A, is under the statutory obligation to provide set back or cut line (Building Line) as per the Regulations while according approval to any building plan. Consequently, the Hon'ble Supreme Court came to the conclusion that it would not be necessary to give any finding on the question as to whether the road lay out plans relied upon by both the parties before it are genuine documents or not in view of the fact that in Item No. 30 of Schedule 'G', Part 9 to the Regulations the width of Abdullah Haroon Road/Victoria Road from the Musical Fountain up to K.D.A. Scheme No. 5, Kehkeshan, Clifton is 24.4 metres whereas the proposed width is 36.6 metres. Consequently, the Hon'ble Supreme Court ordered that part of the building in question viz. Glass Towers be demolished in order to cater for the future road widening of Abdullah Haroon Road as per the said Regulations. In this view of the matter in my opinion, following the dictum of the Hon'ble Supreme Court in Excel! Builders v.
44. Ardeshir Cowasjee (supra) as Nicol Road has not been mentioned in Schedule 'O', Part II of the Regulations, therefore, the plaintiffs cannot be forced to set back their building for the future road widening of Nicol Road based on maps/charts dating back to the 1930's which admittedly were made by K .M.C, which is no longer the Authority to control and oversee construction of buildings and widening of roads in Karachi. In this respect it would be seen that as per Schedule 'G' of the Regulation in Part 9 under Serial No. 2 the Master Plan and Environmental Control Authority of the K.B.C. A. (MPEC) is to prescribe the setting back of buildings in order to cater for future road widening schemes in Karachi. As per Serial No. 3 the Roads listed in Schedule 'G' have already been notified for future Road Widening which as observed earlier does not include Nicol Road. However, at Serial No. 4 the MPEC may in consultation with the concerned Authority which is designated in any particular area for building control, etc,, declare and notify widening and new alignment of any other road/street (not mentioned in Schedule 'G') which in its opinion is expedient for the purpose mentioned at Serial No. 1 vig. To relieve traffic congestion, etc. Consequently, even if Mr. Naeem-ur- Rehman argument is accepted that K.M.C, is responsible for building control/road widening in the area of the suit property unless the widening of Nicol Road is sanctioned by the MPEC. This cannot be done merely at the behest of K.M.C. It may also be noted that such widening is to be undertaken only after inviting public- objections as provided by the Regulations as per Serial No. 5 of Schedule 'G' Of Schedule 'G'. As all the aforementioned conditions have not been complied with. In my opinion, the plaintiffs cannot be forced at this stage to set back the buildings line. Of course after following- the provisions of the aforementioned legal provisions, the plaintiffs may very well be required to set back their building line.
45. Having observed as much it may also be seen that the matter as regards the building line does not end there'. In this connection Part I of the Regulations Chapter 3 under Serial No. 28(i) may he adverted to which prescribes the minimum space between a building and street viz. 4;57 metres from the centre of the street measured at right angle to the face of the building and if a plot abuts on a street on more than one side then this rule shall apply on all such sides of the plot. Under Rule 28(2) it is provided that this minimum distance from the centre of the street may be relaxed by the concerned authorities in the case of a building abutting on to a footpath fronting a street of width less than 10 metres. From the photographs submitted by the Nazir along with his Report it appears that no space has been left by the plaintiff abutting the building and the street and the said building is constructed immediately along the side of Nicol Road. Similarly, it appears from the said photographs that projections on to Nicol Road of the building in the shape of balconies and sun shades exceed the allowable limits as provided under Serial No. 30(i) of the above-mentioned portion of Part (1) of the Regulations. In fact this was one of the objections taken by the K.B.C.A, but has not been averted to during the course of arguments by any of the learned counsel. Finally as regards footpaths, it would be seen that again there is none in front of the building facing Nicol Road. Consequently, for all these reasons, in my view, further arguments need to be addressed by the learned counsel which shall be done during the course of final arguments whereafter the matter as regards the setting back of the plaintiff's building shall be decided.
46. With regards to the next issue viz. The length of the Chamfer, it would be seen that as per Schedule 'G'. Part 2, page 10 of the Regulations under Item No. 7(3) in the interest of pedestrian safety and traffic distance from the building to the road, is to vary according to the width of the road:-
(a) From 9.0 up to 17.9 metres width the distance should he 2 metres.
(b) From 18 to 33.22 metres width the distance should be 2 metres.
(c) From 33.53 metres and above width the distance should be 4.57 metres.
47. In these circumstances, it would be seen that dimensions of a Chamfer as per the Regulations is based upon the width of the roads which interest at the corner of the building. In the present case the width of Nicol Road is in between 33' to 30' from Shahra-e-Liaquat to its intersection with Grant Road as per the Nazir's Report. So also as per the said report the width of Grant Road is 39'.
48. Consequently, it is not entirely clear as to what should be the dimensions of the Chamfer as far as the building in question is concerned. Consequently, the learned counsel to address further arguments - .On this issue in due course.
49. Reverting to the next controversy with reference to the position of the pillars in question, had allowed both the parties to tile their reports after having the building surveyed from properly qualified engineers/experts. As per the report of the plaintiffs' expert the present position of the pillars in question would not effect their load-bearing strength' or otherwise endanger the building.
50. However, as per the opinion of the defendant's expert he has expressed a different view and submitted that upon initial scrutiny of the drawings, etc., it appeared' that the present position of the pillars would endanger-the building. In my opinion the Issue would, therefore, require evidence and cannot be decided on the mere opinions of the parties' experts. Consequently, the matter would come up for evidence on this issue as well as on other issues at which the parties are at variance in due course after issues have been settled.
51. The last issue is the obtaining of the No-Objection Certificate from the various utilities by the plaintiffs. In this connection, it would be seen that as per the comments filed on behalf of the said Companies their contention is that until the proposed building plan is approved they cannot give any unconditional assurance for the supply of their utility services. In particular Sui Northern Gas Company Limited and KESC have laid down further conditions, inter alia, availability of Gas and Electricity. In my opinion, the plaintiffs cannot be faulted for not obtaining confirmed Non-Objection Certificates from the concerned utility companies since to date their revised plan has not been approved by the K.B.C.A. Consequently, until this exercise is done it would be unfair to demand from the plaintiffs' unconditional No-Objection Certificates from the utility companies in question. In view of these circumstances, the decision of this, issue is pended till such time as the main case is decided.
52. In view of what is stated above both C.M.As, bearing Nos. 3035 of 1999 and 6078 of 1999 are disposed of in the foregoing terms. The matter to be fixed for issues on behalf of the parties on a date other than Monday within seven days from today whereafter evidence to be led. Conversely, the parties would be free to nominate a Commissioner for the purposes of recording evidence. No further construction to be carried out in the meanwhile.