' ZIA PERWAZ, J.--- Through short order, dated 25-2-2002 the present petition had been dismissed.
The short order is reproduced as follows : ' "Having heard learned counsel for .The parties we are of the view that from material placed on record no specific violation of the Building or Town Planning Regulations can be inferred so as to enable the respondent No,1 to demolish the building or any part thereof nor is sufficient material available on record to show that the power to approve the building plan has been arbitrarily exercised by respondent No, 1 . It is, therefore, not possible to grant the reliefs sought by the petitioners.
' Nevertheless, we would observe that in case any violation of statutory Regulation is found the respondent No,2 would be liable to take action under section 7-A of the Building Control Act. The petitioner will also be free to seek any other remedy, if available according to law.
' The petition is dismissed subject to the above observations with no order as to costs. Detailed reasons to follow."
2. The detailed reasons of the above short order are hereinbelow.
3. The petitioners claim to be resident-neighbours of an under construction building in the name and style of Techno City situated on Plot No,7-SR-5, Senai Quarters, Karachi (hereinafter referred to as "the said project"). The petitioners being aggrieved by the construction in question have filed the present petition with the following prayers:-- ' "It is, therefore, prayed on behalf of the above-named petitioners as follows:--
(1) Declaring that the approval of plan passed by the respondent No,2 dated 25-11-1999, bearing No,KBCA/KDA/DCB-11/ PROP-REV-10/1999/22/1999, for the Plot No,7, SR-5, Serai Quarters, Karachi, permitting the construction of ground plus seventeen floors in Block 'A' and 11 floor in Block 'IV in the said building being in contravention of the Town Planning and Regulations and are without lawful authority and of no legal consequences and as such liable to be withdrawn by the respondent No,2.
(2) To direct the respondent No,2 to take immediate action against the respondents Nos.3 and 4 in accordance with the Regulations and thereby demolition of all such constructions that has been raised by the respondents Nos.3 and 4 in violation of the Town Planning Regulations, 1978.
(3) To direct the respondent No,2 to seal and attach the illegal building structure and to take action, by performing their duties and legal obligations casted upon them under law.
(4) Restraining the respondents Nos.3 and 4 or any other person on their behalf including the Architect, Supervisors and Labourers from raising illegal construction or any work relating to constructions on Plot No,7, SR-5, Serai Quarters, Grant Road, Karachi and to restrain them to part with possession of the flats, shops, offices of the said building on the above-said plot or part thereof and or to sell the same.
(5) To direct the respondent No,5 not to sanction the load and or connection of electricity at Plot No,7, SR-5, Serai Quarters, Karachi, and if it has already been granted the same may be directed to be disconnected forthwith and directing respondent No,7, not to allow the respondents Nos.3 and 4 to use the sewerage lane and the water connections sanctioned and if so connected be directed to be disconnected at Plot No,7, SR-5, Serai Quarters, Karachi.
(6) The respondent No,6 be directed to cancel the lease-deed and the Transfer Order in favour of respondent No,3 and escheat the property to the Government of Sindh and furthermore to perform their duties casted upon them under law.
(7) To restrain the respondents Nos.8 and 9 not to register Sub-lease or any deed, any sale-deed, power-of-attorneys and/or any other documents which create third party interest in respect of Plot No,7, SR-5, Serai Quarters, Karachi, on behalf of the respondent No,3 in any manner through respondent No,4 or any other agent or attorney.
(8) Any other relief deem fit in the circumstances of the case."
4. Messrs Naim-ur-Rehman and Muhammad Zahid Khan, the learned counsel for the petitioners, have challenged the approved plan as also the construction on the following grounds:--
(a) the building plan in this case is for 17 floors and the same violates the provisions of the Karachi Buildings and Town Planning Regulations, 1979 (hereinafter; KBTPR, 1979) in the manner that at the rear side of the building a compulsory open space of 2.25 meters was to be maintained which was to extend for the full width of the rear side. Reliance in this respect was .Placed upon Regulation 29(1) of the KBTPR, 1979, Part-I at page 22. It is vehemently contended that neither the building plan nor construction leaves the said prescribed space which is essential for fire-fighting.
(b) in terms of Regulation 32 of the KBTPR, 1979 Part-I, page 23, the space prescribed therein has neither been mentioned in the approved plan nor actually maintained by the builder at site;
(c) the plan in question approves a construction area which is in excess of what is permissible under the KBTPR, 1979. In this respect it is alleged that the ramps which provide access to car parking, prayer area, amenity toilets and the gymnasium on the 17th floor are not counted in the calculation of covered area;
(d) the construction will adversely affect the petitioners' right of privacy guaranteed under Article 14 of the Constitution as also the right of life contained in Article 9 of the Constitution. In this respect reliance is placed upon Shehla Zia v. WAPDA PLD 1994 SC 693;
(e) it was also contended by the petitioners that the construction in question shall materially affect the infrastructure and amenities available in the area such as water, sewerage, gas and electricity; not only this it will generate great nuisance in terms of traffic congestion, and derogation of the environment due to emission of smoke, creation of noise, diminution of air and light and shall also adversely affect the peaceful living in the neighbourhood. In this respect vehement reliance has been placed upon Excell Builders v. Ardeshir Cowasjee 1999 SCM R 2089, in particular para.18 thereof, for the point that since no-objection certificates have not been obtained from the agencies supplying utility services the plan could not have been passed in the first place.
Furthermore, reliance is placed upon Continental (Pvt.) Ltd. v. Government of Sindh 1996 CLC 417 and the provisions of the Pakistan Environmental Protection Act, 1997.
5. On the other hand Dr. Muhammad Farogh Naseem, the learned counsel appearing for the respondents Nos.3 and 4, the builder and its managing partner, has contended as follows:-
(a) the compulsory open space at the back is governed by Regulation 29(3) and not Regulation 29(1) since the plot in question is a corner plot;
(b) Regulation 32 of the KBTPR is not applicable in the present case since the same applies to plots which do not abut any streets whereas in the present case the plot in question is a corner plot abutting two streets;
(c) no excess area whatsoever has been passed by the KBCA. The plot ratio in the present case is 1:6 as given at page 92 of the KBTPR part 2 pertaining to Zone-C, Item No,1 i.e, Serai Quarters for commercial use since the plots in question is by birth a commercial plot;
(d) it is further contended that the prayer area is very much included in the covered area with regard to gymnasium and public toilets the same constitutes amenity areas and have been rightly excluded. Furthermore it is contended that ramps are a part of car parking and are rightly excluded from the covered area. In this regard reliance is placed upon entry 7(c)(i) of the KBTPR part 2 at page 72 read with. Part rof Entry 3(ii)(a) at page 77 and Entry 12 at page 79 of KBTPR, Part 2;
(c) the entire area is commercial in nature and the petitioners themselves reside in a building; instances of other commercial projects are the MCB Tower of 22 storeys, which is being constructed directly opposite to the building in the present case, without any objection from the petitioners; instances of other buildings are given at Annexure "X-10" to the statement filed by the respondent No,4 on 19-2-2002 which show the Habib Bank Annexe, Valika Chambers, Uni Plaza, Uni Centre, Uni Tower, Cotton Exchange Building and Habib Bank Plaza, amongst others;
(f) on grounds of amenity of infrastructure it is contended that according to the Sindh Buildings Control Ordinance, 1979 (SBCO, 1979) and KBTPR, 1979 there is no requirement for obtaining 'No- Objection Certificates' from agencies/authorities providing infrastructure/amenities. Vehement reliance is placed upon Abdul Razzak v. KBCA PLD 1994 SC 512, para.21 at pages 529-530 and two unreported judgment of two Division Benches of this Court i.e, Muhammad Rafique and others v.
Administrator KMC and others C.P. No,D-130 of 1994, dated 2-7-1995 and Ardeshir Cowasjee v. CCB and others C.P. No,D-294 of 1998, dated 28-11-2000.
6. Mr. Shahid Jamil-ud-Din Khan, learned counsel for the respondent No,2 (KBCA) was present alongwith officers of the KBCA. Mr. Shahid Jamil-ud-Din Khan contended that the building plan in this case is lawful and has been passed by the KBCA after due scrutiny by taking into account all the provisions of law and regulations. According to the learned counsel the plan was also examined and has been passed by the Special Committee of Highrise Buildings of the KBCA which comprises the representatives of many NGOs including Messrs Sheri and after debating and discussing the provisions of law and after taking into account infrastructure requirements of the area the building plan had been approved. It was also contended that no provision of the Building Regulation or law had been violated nor the actual construction violates the approved plan. In this regard reliance is placed upon the Nazir's report. Not only this it has been further stated by Mr. Shahid Jamil-udDin Khan that in case any violation is detected, the KBCA shall take action strictly in accordance with law.
7. We have heard the arguments of learned counsel, perused the record and the law-on the subject.
8. Regulation 29 of the KBTPR, Part-I has been mooted by both the sides and it shall be convenient if the same is reproduced. Which is as follows:-- ' "Regulation 29 Minimum space at the rear of building will be as follows:
(i) There shall be space at the rear of every building minimum depth of 2.25 meters. This shall extend for the full width of the site, provided the rear does not abut on a public road or lane;
(ii) Plots with a depth of less than 8 meters shall be exempted from the above requirement;
(iii) Corner plots where the building is allowed to abut on the sides shall be required to leave minimum square space of 2.25 meters side at the rear corner."
9. A perusal of the above Regulation 29 confirms that sub-rule (1) of Regulation 29 requires the builders to leave a minimum space of 2.25 meters as compulsory open space at the rear side for full width for the site. However, the said sub-rule (1) has been qualified by sub-rule (3) which provides that for corner plots the minimum square space of 2.25 meters is to be left at the rear corner. Mr. Naim-ur-Rehman has contended that the said sub-rule (3) of Regulation 29 is absurd and ignores the eventuality of fire fighting required in an emergency.
' According to the learned counsel for the petitioners there will be no room for the fire-brigade to enter the building nor there shall be a proper place for exit of persons stuck in any situation of fire.
Admittedly the said project is situated on a corner plot abutting Hasrat Mohan' Road and Altaf Hussain Road. It is an elementary principle of interpretation of statutes that words in a statute are to be given their ordinary, grammatical and literal meaning based upon common sense and also that a statute/document has to be read as a whole. A clear reading of Regulation 29 as a whole confirms that sub-rule (1) of Regulation 29 is the general rule and sub-rule (3) of Regulation 29 is an exception thereto for corner plots. In the present case since the plot in question is a corner plot application of sub-rule (3) of Regulation 29 is fully justified. Mr. Naim-ur-Rehman's argument touching upon fire hazards is devoid of any merit since even if spaces as required by Regulation 29(1) are provided at the back the entire fire brigade/truck would not still be able to enter the building. Fire-fighting is carried out by placing the fire-brigades on the abutting streets and supplying water through hose pipes. In the present case there are two streets on which the fire- brigades can easily be parked and fire-fighting can be carried out through extension of pipes from fire trucks/brigade to various places in the building. Not, only this but the builder has placed on record parts of the approved plans as annexure "X2" and "X-3" to the statement filed on 19-2-2002 which are detailed drawings of the fire-fighting system inbuilt in the building/construction itself. A bare perusal of the said plans confirms that for the purposes of fire-fighting there is provision for water reserves, fire pumps and a complete and detailed network of lines to effectively take care of any fire hazard. Through order, dated 9-1-2002 the KBCAwas directed to file a detailed report in relation to the applicability of the three sub-rules of Regulation 29, KBCA in its report dated 16-1- 2002 has confirmed that sub-rule (3) of Regulation 29 applies to corner plots and since the present construction is carried out on a corner plot, sub-rule (3) and not sub-rule (1) applies. Our analysis as aforesaid stands confirmed by KBCA's report. Accordingly we hold that in the present case the building plan has been correctly passed by prescribing the minimum compulsory open space at the rear in the terms of sub-rule (3) of Regulation 29 of KBTPR, Part I.
10. The next argument of the petitioner concerns the applicability of Regulation 32 of the KBTPR, Part I in view whereof it shall be convenient to reproduced the same, which is as follows:-- ' "Regulation 32. Every building not abutting on a street shall have an access or a right of way for an approach from the street open to the sky and at least 2.5 meters wide if the length of such access or right of way does not exceed 15.25m from the street. If the length exceeds 15.25m the width shall be at least 5m in order to facilitate access by the Fire Brigade to the rear building. In case where conditions do not permit the application of this clause as the case may be considered for relaxation on merits by the concerned authority.
11. A simple reading of the above Regulation 32 confirms that it provides for access or a right of way from the street and of the specified width which is open to sky for an approach to a building at the rear and not abutting on a street the same is only applicable where the building does not abut a street. The said Regulation can hardly be relevant where there is no rear building falling under that description i.e, a building at the rear not abutting a street. In the present case all the rear buildings are abutting to streets. The KBCA in its report, dated 16-2-2001 has confirmed that Regulation 32 is not applicable in the present case as the plot in question is a corner plot abutting two streets.
Accordingly, Regulation 32 is held to be irrelevant and hence the contention of the learned counsel for tile petitioners on this score is also rejected.
12. The next argument of the petitioner is in relation to allowing excess area in the approved plan.
The contention regarding exclusion of prayer area from the approved plan is factually incorrect.
The prayer area has been included in the calculation of covered area.
13. As regards public utility/amenity areas including public amenity toilets and gymnasium, nothing has been brought on record by the petitioners to justify its inclusion in the covered area.
On the contrary, we are all aware that the nature of buildings in Karachi have been such that builders do not provide for any public utility areas such as gymnasium or public lavatories. The provision of such facilities advances the cause of public interest and not otherwise. However, the builder is restrained from selling or alienating the public utility areas such as public lavatories and gymnasium which should remain as amenity areas.
14. With regard to the contention that ramps which give access to car parking should be included in the covered area, it will be convenient to reproduce the relevant provisions of the KBTPR, which are as follows:-- "(7) Plot ratio standards and height of Building:-(1) Definitions
(a) ................................................................
(b)
(c) 'gross floor area' is the measurement of the overall dimensions of the building or part of the building on each floor whether above or below ground level and includes the thickness of internal and external walls but excludes;
(i) space for car parking provided in accordance with the car parking standards in these regulations; (see page 72 of KBTPR pt.2 for above)
' Part 4---Parking and Loading Requirements 3.(ii)(a) parking space shall be provided within the building premises either in open space or basement, or on any floor or floors with proper ramp/lift. (see pages 76 and 77 of part 4 of Entry 3(ii) of KBTPR pt. 2).
12. Calculations for car parking shall be made at the rate of 2.5 sq meter per car including circulation space." (See page 79 of KBTPR pt.2).
15. A cumulative reading of the above confirms that from the calculation of grass floor area i.e, covered area, the space for car parking has to be excluded [see (7)(c) referred above. Reading of Entry 3(ii)(a), para.4 reproduced above confirms that the parking space can be in an open space, basement or any floor with proper ramps and lifts. Entry 12 above confirms that in the car parking the circulation space is to be included. A ramp is used for access to car parking. In other words it is a circulation space for the purposes of car parking. This is obvious since iii case car parking is provided in the basement or upper floors, it cannot be accessed without ramps as it is ancillary to, and a necessary part of the defined facility so far as they are not put to any alternate use. Hence it is only logical that a ramp is nothing but a circulation space for car parking, in view whereof it is to be included in car parking in terms of Entry 12 at page 79 of KBTPR; pt.2; and hence being a part of car parking it has been rightly excluded from the gross floor area/covered area as provided in Entry 7(c)(i) of the KBTPR, pt.2 at page 72. The KBCA in its parawise comments at para. 6(iv) vide page (3) has also confirmed this position. Accordingly we hold that the ramps have been rightly excluded from the calculation of covered area.
16. The area of plot in question is admittedly 5,751.76 sq. Yds. If the above area is multiplied by 9 ft.
The same shall give the area of the plot in square ft. Which will come to 51,765.85 sq. Ft. The allowable covered area will be governed by the plot ratio which in the present case is 1:6 i.e, covered area can be 6 times the area of the plot. The plot area in square feet when multiplied by 6 (i.e, the ratio) would result in an area of 3,10.595 sq. Ft. Whereas the approved area is 3,10,567 sq. Ft., which is even less than the allowable area. In this respect reference is invited to Annexure "X-7" of the statement filed by the respondent No,1, dated 19-2-2001, which attaches a portion of the approved plan duly endorsed giving a summary of the covered area. The same is reproduced as follows:-- Area of plot = 5751.76 sq. Yds.
Allowable area 1:6 = 51765.85 sq. Ft.
Proposed total covered area= 310567.00 sq. Ft.
' If the approved area is less than the covered area, the contention of the petitioners with regard to covering more/excess area than the allowable area is completely bereft of any logic and is thus rejected as patently misplaced.
17. It will not be out of place to mention that through order, dated 17-8-2001 (as modified by order, dated 3-10-2001) the Nazir of this Court was appointed to inspect the property with the aid of architects for each side. The Nazir in his report dated 3-11-2001 has confirmed that the construction is in accordance with the approved plan. His report is counter-signed by the two architects for both the sides. Later the architect for the petitioners through his report dated 2-11-2001, directly sent to the Court although confirming conformity of the construction with the approved plan, disputed the applicability of Regulation 29(3). To the same objections have filed by the builder's counsel. The report/objections of the petitioners architect appear to be an afterthought, having been sent to the Court directly after counter-signing the Nazir's report. The same, however, has become irrelevant since we have already come to the conclusion that Regulation 29(3) applies to the present case.
18. The last ground- of the petitioners is with regard to breach of privacy, violation of right of life including diminution of light, air and increase of noise, nuisance, pollution, adverse environment and failure of the builder to obtain no objection certificates from agencies/authorities supplying water, gas and electricity. Mr. Naim-urRehman has vehemently relied upon Excell Builders v.
Ardeshir Cowasjee 1999 SCM R 2089 to contend that since in the present case the builder has not obtained NOCs from agencies/authorities supplying utilities/services, the plan could not have been approved in the first place and hence the same should be annulled. In this respect vehement reliance has been placed on para.18 of the judgment which is reproduced as follows:-- "18. Though we are of the view that the judgment under appeal does not call for interference by this Court. However, we would like to add that simpliciter the fact that the conversion of a residential plot on a main road into a commercial plot is warranted on account of the change in the situation would not justify the violation of any provision of any law or building bye-laws or regulations, nor it would warrant grant of permission for a high rise building having 17/18 floors. The Government, or the Authority concerned is under obligation to decide the question of number of floors keeping in view the extent of availability of utility services like water, electricity, gas, sewerage lines, streets and roads in the locality involved and the permission for construction of a proposed building should be of minimum floors, which may cause minimum inconvenience and discomfort to the residents of the locality. With the above observation Civil Appeal No,575 also fails."
' Also reliance is placed upon Continental (Pvt.) Ltd. v. Government of Sindh 1996 CLC 417 wherein it has been held that it is the prime duty of the Government to ensure requisite provision of water, sewerage pollution free environment and hence the request to obtain permission for additional floors was turned down.
19. We have considered the above and are of the view that unless the petitioners or objectors to actually specify any violation of the SBCO, 1979 or the KBTPR, 1979, no interference can be made by the Court, as in the present case. The case of Excell Builders, popularly known as the Glass Towers' case, hardly advances the case of the petitioners. The latter was a case where the building plan was passed in violation of the provisions of the Regulations pertaining to cut-line meant for road widening. Both the High Court and then the Supreme Court enforced the Regulations on grounds that the same were statutory in nature. To this extent Multiline v. Ardeshir Cowasjee PLD 1995 SC 423 was upheld in the Glass Towers' case and the Regulations were enforced to the extent of the argument pertaining to the cut-line; with regard to the appeal of the objectors questioning commercialization and construction of a high-rise building, the same was also dismissed by the Honourable Supreme Court. The observations in para.18 reproduced above are to be read in the context that earlier the builder in that case had obtained permission to construct the building upto 17/18 floors well beyond the plot ratio whereas subsequently the builder voluntarily gave an undertaking to construct upto 4 floors. Para. 17 of the judgment in the Glass Towers' case confirms this position. The observations in para. 18 do not prescribe a requirement for the KBCA or the builder to first obtain no objection certificate from agencies/authorities supplying utility services. All that it says is that the KBCA while approving plans may keep in mind the availability of infrastructure and amenities. In fact the observations made by the Honourable Supreme Court in Abdul Razzak v.
KBCA PLD 1994 SC 512 at para. 21 sufficiently clinch the entire controversy in this regard wherein it has been held and desired that Regulations ought to be strictly followed. The relevant observations are reproduced as follows:-- ' "To reduce the miseries of most of the Karachities, it is imperative on the public functionaries like the Authority to ensure the adherence to the Regulations."
Obtaining no objection certificate by the agencies supplying utility services is not mandated by the SBCO, 1979 of KBTPR, 1979 or even the Glass Towers' case. In fact in the case of Muhammad Rafique and others v. Administrator KMC C.P. No,D-130 of 1994, dated 2-7-1995 a Division Bench of this Court repelled the argument of lack of availability of infrastructure/amenities due to the construction in question. Writing for the Court, Kamal Mansoor Alam, J. As he then was observed as follows:-- ' "The argument that, as, by reason of the construction of several units on the plot many more families would occupy the same resulting in dislocation and disturbance of amenities and essential services, like water, electricity, gas, sewerage etc., the respondents should not be permitted to raise the construction, has no force. The allegation about dislocation and disturbance of amenities and essential services is a question of fact which can be determined only on the basis of evidence and cannot possibly be borne in this petition. Moreover, this problem is common to all the localities of Karachi and if construction were to be refused on this ground alone there would soon be no living accommodation available in this over populated city."
' A subsequent Division Bench of this Court in Ardeshir Cowasjee v. Clifton Cantonment Board and others C.P. No,D-294 of 1998 relied upon the case of Muhammad Rafique and others to repel the argument about lack of infrastructure and amenities. It is needless to point out that Mr. Naim-ur- Rehman's argument of change of low density to high density area is not relevant in the present case since there has been no conversion from residential to commercial in the present case. The plot in this case is a by birth commercial plot. Accordingly following Abdul Razzak's case we hold that Regulations are strictly to be followed and there is no additional requirement to obtain no objection certificates from agencies/authorities supplying utility services infrastructure. The judgment of Continental (Pvt.) Ltd. 1996 CLC 417 is also distinguishable, since in that case the plan had been approved during the period of ban for 15 storeys. Subsequently, the numbers of storeys were reduced. The said judgment also does not to spell out any separate requirement of obtaining NOCs from agencies/authorities supplying infrastructure/utilities. The petitioners' argument touching upon the Environmental Protection Act, 1997 holds no force since the environmental approval is duly given by the KBCA. It has been held by a Division Bench of this Court in Ali Asghar and others v. The Creator Builders CP No,D-1939 of 1998 that KBCA's environmental approval is sufficient compliance of approval under the Environmental Protection Act, 1997. The said judgment of this Court has been upheld in Ali Asghar and another v. The Creator Builders 2001 SCM R 279 by the Honourable Supreme Court.
20. In view of the above discussion the petition is dismissed in limine.