1. ' The plaintiff has filed this suit for declaration, permanent and mandatory injunction with the following prayer:-- "(i) to declare that the building plans submitted by the plaintiff on 22-4-2000 are deemed to be approved by operation law;
(ii) to grant Mandatory Injunction directing the defendant to approve the Building Plan submitted by the plaintiff on 22-4-2000;
(iii) to grant permanent injunction restraining the defendant from implementing the Notice dated 12th March, 2003 of demolition of the building constructed on Plot No.221, I.E. Lines, Dawood Pota Road, Saddar, Karachi, known as the Chapal Navinta Mall and Luxury Apartments or from interfering with the construction work thereon or restraining them from taking any other adverse action against the plaintiff;
(iv) cost of the suit;
(v) any other further relief or relief(s) that this Honourable Court may deem fit and proper in the circumstances of the case,"
2. ' The facts in brief are that the plaintiff is a sole proprietor of Messrs Chapal Builders the owner of Plot No.221. E.I. Lines, Saddar, Karachi. The. Firm Chapal Builders carries on business of constructions of buildings of multi storeyed flats, apartments, shops, residential and commercial buildings at Karachi. The Plot No.221. E.I. Lines, Saddar, Karachi was purchased by the plaintiff from one Syed Muzamil Hussain vide agreement of sale dated 29-8-1998 and on the same day the said Syed Muzamil Hussain also gave an Irrevocable General Power of Attorney to the plaintiff. The said agreement of sale and the said power of attorney allowed the plaintiff to apply for approval from defendants to construct on the said plot apartments, shops, offices, showrooms, commercial plaza and display centre. The plaintiff with letter dated 2-10-1998 submitted to the defendant building plan for the proposed building to be constructed on the said plot. The building plan contemplated a building of 16 floors consisting of 168 flats plus 62 degree pent house with a height of 150 feet. The Military Estate Officer vide its letter dated 6-10-1998 gave his no objection from land point of view for the construction of commercial building on the said plot. On 10-11-1998 plaintiff deposited with the defendant scrutiny fee of Rs.6,64,443 for the approval of the building plan.
3. The defendant through its letter, dated 13-11-1998 informed the plaintiff that the building plan has been approved architecturally but permission of the building plan would be accorded only after receipt of soil testing report, structural calculation/drawings and NOC for services A like electricity, water and gas with further advice that construction work should not be undertaken prior to the issue of municipal approval. The defendant through its letter dated 21-11-1998 granted permission to the plaintiff for advertisement, sale and booking of shops and flats in the project which was named as "Chapal Navinta Mall and Luxury Apartments". The plaintiff then issued advertisement of the project in newspapers. The plaintiff received enthusiastic response who booked 541 shops and flats and received payments. The defendant through its letter dated 29-1-1999 pointed out certain discrepancies in the calculation sheet and structural drawings and also pointed out that structural documents have not been signed by the Wetting Engineer. The plaintiff submitted wetting Report dated 22-2-1999 to the defendant. The plaintiff through letter dated 1-2-1999 requested the defendant to grant permission to start work/digging on the said plot. The defendant through its letter dated 5-3-1999 granted municipal approval of the building plan and allowed construction of the building as per sanctioned plan. The plaintiff vide its letter dated 3-5-1999 requested the defendant to allow construction of arcade. Thereafter plaintiff commenced construction of the building on the said plot with an arcade and constructed the building up to 5th floor by middle of 1999. It is alleged that on the assurance of the officers of the defendant that the plaintiff will be allowed construction of the building in accordance with the building plan submitted by him on 2- 10-1998, the plaintiff completed the sale of the said plot and entered into a Conveyance Deed on 30-6-1999. It is alleged that the defendant through its letter dated 19-7-1999 allowed construction of the arcade with the condition that no construction whatsoever should be made over the arcade.
4. It is alleged that this condition of not allowing construction over the arcade by the defendant was contrary to its own bye-laws and departmental practice. It is alleged that defendant through its letter dated 30-8-1999 and dated 4-11-1999 raised objection on certain aspect of the building which was replied by the plaintiff vide its letters dated 16-10-1999 and 1)711-1999:- It is alleged that the plaintiff submitted formal notice dated 18-4-2000 alongwith building plans to the defendant for the regularization of the building plans and it is stated that it was received by the defendant on 22- 4-2000. The plaintiff further served - a statutory call attention notice under section 181(6) of the Cantonments Act, 1924 (to be called the Act) dated 14-6-2000 on the defendant alleging that 50 days i.e. In access of statutory period have expired since the submission of building plan dated 22- 4-2000 and requesting the defendant to sanction the building plan within 15 days. It is alleged that the defendant did not communicate to the plaintiff any objection to the building plan nor gave approval of it and in terms of the provision under which call attention notice was given, it would be deemed to have been approved. The plaintiff however, wrote another letter dated 30-6-2000 to the defendant stating therein that the building plans submitted by the plaintiff stood sanctioned unconditionally. It is alleged that on 5-7-2000 plaintiff received defendant's pre-dated letter viz. 24-6-2000, with this letter the defendant returned to the plaintiff revised/regularization plan with objections noted therein. The plaintiff being aggrieved of this letter of the defendant wrote its letter dated 10-7-2000, wherein plaintiff took the stand that in terms of the statutory notice the building plans stood sanctioned/ approved unconditionally. The defendant thereupon asked the plaintiff to submit plan showing unauthorized construction in distinct colour restricting number of storeys as per plan approved by the Board. The defendant through its letter dated 8-9-2000 called the plaintiff to stop unauthorized construction. The plaintiff gave detail explanation but the defendant vide its letter dated 1-11-2000 called upon the plaintiff to demolish and remove the unauthorized construction raised on the said plot. Plaintiff once again through its letter dated 26-11-2000 sought permission for regularization of the revised building plan against which the defendant through its letter dated 13-12-2000 called upon the plaintiff to demolish unauthorized construction over the arcade etc. The plaintiff again vide its letter dated 9-2-2001 submitted another building plan to the defendant for the consideration of the Board. The defendant vide its letter dated 9-3-2001 asked for the experts opinion but it is stated that until the filing of this suit no opinion was received. The plaintiff approached various higher authorities but to no avail. Plaintiff received from the defendant notices dated 28-11-2001, 29-11-2001 and 20-12-200/ against which plaintiff filed appeal before Director Military Land and Cantonment Karachi Region. The Director Military Land and Cantonment Karachi dismissed the appeal vide his order dated 20-3-2002. It is alleged that on 3-4-2002 applications were invited for regularization of the project through advertisement in Daily Mang by the defendant in response to such advertisement, the plaintiff submitted regularization plan of the building but the defendant refused to consider such application of the plaintiff on the ground that the plaintiff building was under construction and did not come within the purview of the notice published in the newspaper. Plaintiff again approached higher authorities but to no avail. Finally on 12-3-2002 and 15-3-2002 plaintiff received notices to demolish the unauthorized construction of the building on the ground that the Board has rejected the revised building plans submitted by the plaintiff. It is alleged that the plaintiff has acquired vested right to raise commercial building in accordance with the building plans submitted by the plaintiff. Consequently the suit herein was filed with the prayer as already noted above.
5. ' The defendant has contested the matter and filed its written statement in which the defendant has denied the allegations made in the plaint and has prayed for dismissal of the suit. The following consent issues were adopted by the Court:--
(1) Whether the building known as Chapal Navinta Mall is being constructed contrary to law from its very inception?
(2) Whether a building Chapal Navinta Mall is being constructed according to revised plan dated 22 April, 2000 as submitted by the plaintiff, as alleged. By the defendant, contrary to section 178-A, Cantonment 'Act 1924 or KCB Building Bye-Laws 1983 can be made subject to approval under section 181(6) of the Cantonment Act 1924 including Bye-Law No.12 of the said KCB Building Bye- Laws 1983?
(3) Whether the plaintiff could advertise for sale of units in a 16 storey building when he had submitted a plan for G-1-9 dated 7 September, 1998 for approval?
(4) Whether the other buildings in the area are in excess of plot ratio 1:6 and have covered Arcades in particular Naz Plaza, Cambridge Shopping Mall and Jeddha Gold Center have been regularized?
(5) Whether the defendant dis Criminated between the plaintiff and the other builders including of Naz Plaza, Cambridge Shopping Mall and Meddah Gold Center?
(6) Whether the plaintiff discriminated against the defendant by not approving the revised plan dated 22-4-2000 which is allegedly contrary to KCB Building Bye-Laws 1983?
(7) Whether the plaintiff or the defendant has violated the order dated 1"5 April, 2003 and committed Contempt of Court of this Honourable Court.-
(8) What should the decree be?
6. ' On framing the issues the parties counsel made statement that the matter can finally be adjudicated on the basis of pleadings and documents filed by them and no oral evidence will be required. The matter was posted for hearing of final arguments.
7. ' I have heard the arguments of Mr. Kamal Azfar, the learned counsel for the plaintiff and of Mr. Naim-ur-Rehman, the learned counsel for the defendant. I have also gone through the record.
8. ' The learned counsel for the plaintiff has made the following submissions:--
(i) That the plaintiff has submitted building plans with notice dated 18-4-2000 for the regularization of works carried out without permissions the defendant having failed either to object to or approve the building plans, the same will deemed to have been approved unconditionally, under section 181(6) of the Act.
(ii) That the defendant has regularized construction over arcade of Naz Plaza, M.A. Minnah Road, Karachi which gave to the plaintiff legitimate expectancy of such regularization who too has raised construction over arcade and the defendant is liable to regularize such construction of the plaintiff.
(iii) That the defendant by regularization of unauthorized construction in:-- (b)Meddah Center; Naz Plaza; (c)Minnah Avenue; (d)International Center; (e)Cambridge Luxury Apartments; Panorama Center;
(g) APWA Center; and
(h) Elphi Gulleria has established departmental practice of regularization of unauthorized construction and such departmental practice is binding on the defendant and it should also be followed in the case of the plaintiff.
(iv) That Bye-Law 136 of Building Bye-Law of the Cantonment Board Karachi empowers the defendant to regularize the unauthorized construction and such power vesting in the defendant should be exercised in the case of the plaintiff.
(v) That the plaintiff building of 16 storeys has height of 150 feet which height is permitted by Bye- Law 15 of the Building Bye-Laws of Cantonment Board Karachi as both the roads in front and back of the building are of 100 feet therefore, there is no illegality in construction of 16 storey building.
9. ' He has relied upon the following case law in support of his submissions:--
(1) Municipal Committee Hoshiarpor v. Darshan Lal AIR 1946 Lah.413;
(2) Sterling Computer Limited v. M & N Publications Ltd. AIR 1996 SC 511;
(3) Ram Naraindas v. Cantonment Board Delhi 84;
(4) Pacific Multi National v. I.-G. Police PLD 1992 Kar. 283;
(5) Arif Builders and Developers v. Government of Pakistan PLD 1997 Kar. 627;
(6) Balochistan Construction Co. v. Port Qasim Authority 2001 YLR 2716;
(7) Patrosin Products v. Federation of Pakistan 2001 CLC 1412;
(8) Shir Hamainder Singh Arora v. Union of India AIR 1986 SC 1527;
(9) Iftikhar Siddiqui v: Clifton Cantonment Board PLD 1998 Kar. 373;
(10) Puri Terminals Ltd. v. Port Qasim Authority 2003 CLD 153;
(11) Ramana Day aram Shetty v. International Airport Authority of India AIR 1979 SC 1628;
(12) Tata Cellular v. Union of India (1994) 6 SCC 651;
(13) Shaukat Ali v. Government of Pakistan PLD 1997 SC 342;
(14) Chairman Regional Transport Authority v. PMIC PLD 1991 SC 14.
10. ' On the other hand the learned counsel for the defendant has made the following submissions:--
(i) That the authority to approve building plans is vested in the Cantonment Board by virtue of sections 178-A, 179, 180 and 181 of the Cantonments Act, 1924 and the defendant has approved the building plan of the plaintiff under such provision for two basements, ground plus nine floors building.
(ii) That in the building plan submitted by the plaintiff there was no mention of arcade and the building plan was approved without arcade. However, on plaintiff's subsequent request, he was allowed construction of arcade with specific provision that there will be no construction over the arcade but the plaintiff has illegally raised construction over the arcade.
(iii) That the building plan submitted by the plaintiff under Form-7 of the Building Bye-Laws of Cantonment Board Karachi for regularization of Unauthorized construction altogether showed a different building from that which was approved by the defendant. Such building plan could not be approved and was rightly rejected by the defendant.
(iv) That Form-7 of the Bye-Laws applies to completed buildings and not to the buildings under construction.
(v) That since very inception the plaintiff has made violation of approved building plan in respect of which notices of demolition of unauthorized construction were given by the defendant to the plaintiff but the plaintiff unabatedly continued illegal construction on his own and did not comply with any of the notices of the defendant.
(vi) That even in spite of consent order dated 24-2-2000 passed in C.P. D-1678 of 1999 for removal of unauthorized construction, the plaintiff did not abide by that order and did not remove unauthorized construction. He also referred to the Nazir Report dated 27-6-2003 and letter of Imran Associates dated 20-6-2003 showing violations of the approved plan made by the plaintiff.
(vii) That the notice 181(6) of the Cantonments Act, 1924 was misconceived and inapplicable to the case of the plaintiff.
11. (viii)That the plaintiff has not approached the Court with clean hands and that the plaintiff is not entitled to any relief and suit be dismissed.
12. ' He has relied upon the following case law in support of his submissions:--
(1) Cantonment Board, Rawalpindi v. Sh. M. Saeed and others 1995 MLD 883;
(2) Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others 2002 SCMR 312;
(3) Messrs Flying Kraft Paper Mills (Pvt.) Ltd. v. Central Board of Revenue and others 2000 SCMR 945;
(4) Miss. Farzana Qadir v. Province of Sindh 2000 PLC (CS) 225;
(5) Food Corporation of India v. Messrs Kamdhenu Cattle Feed Industries 1993 SCMR 2158;
(6) Council of Civil Service Unions v. Minister for the Civil Service (1984) 3 All ER 935 Ch D;
(7) Dr. Fozia Amber v. Government of Punjab PLD 2003 Lah 741;
(8) Halsbury Laws of England Volume 1(1) page 144 (Paragraph 78);
(9) Craig, P.P. (2003) Administration Law London, Sweet and Maxwell at pages 812, 832;
(10) Brind v. Secretary of State for the Home Department (1991) 1 All ER 720;
(11) Associated Provincial Picture Houses Ltd. v. Wednesbury Corp. (1947) 2 All ER 680;
(12) Habib v. Haji Muhammad PLD 1970 Kar 495;
(13) Abdul Qayoom v. Ziaul Haq PLD 1962 (W.P) Kar 334;
(14) Chittly on Contract, Vol. 1 Page 1263 1 1266;
(15) Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon 1994 SCMR 2189;
(16) United Bank Ltd. v. Golden Textile Mills Ltd. 2000 CLC 819;
(17) Government of Pakistan v. Facto Belarus Tractors Limited 2000 SCMR 112;
(18) Western Fish Products v. Penwith DC (1981) 2 All ER 204 CA;
(19) Anjum Irfan v. Lahore Development Authority PLD 2002 Lah. 555;
(20) Ardeshir Cowasjee v. Karachi Building Control Authority (KMC), Karachi 1999 SCMR 2883;
(21) Messrs Excell Builders v. Ardeshir Cowasjee 1999 SCMR 2089;
(22) Abdul Razak v. Karachi Building Control Authority PLD 1994 SC 512;
(23) Director of School Education, Hyderabad Region, Hyderabad v. Provincial Ombudsman 1999 MLD 2856;
(24) Muhammad Riaz v. Karachi Metropolitan Corporation 2000 CLC. 1107;
(25) Fayazuddin v. Karachi Building Control Authority 2000 YLR 1161;
(26) Aurangzeb v. Messrs. Sui Southern Gas Company Ltd. 2003 YLR 1673;
(27) Rizwan Waid v. Presiding Officer, Special Court (Offences in Bank) PLD 2004 Kar.
13. 28.
14. ' As regards the first contention of the learned counsel for the plaintiff, it may be noted that the plaintiff has submitted initially building plans to the defendant vide its. Letter dated 2-10-1998. With this letter, plaintiff has submitted three blue prints of its proposed building. The blue print of ground floor plan which is attached at page 85 of the record shows a building having two basements, ground floor and 1 to 14 floors and thereafter 'a floor showing a pent house. There is no mention of arcade in the 10 feet compulsory open space in front and back of the building. In the blue print of the Ist to 14th floor plan at page 87 of the record shows building of 1 to 15 floors and a pent house above the 15th floor. Again there is no mention of arcade in the 10 feet compulsory open space in the front and back of the building. The third blue print is a typical floor plan for 1 to 15th floor at page 89 of the record and there is no mention of arcade in the 10 feet compulsory open space of the building. The plans were forwarded by the defendant to the Military Estate Officer, Karachi Circle, Karachi for his consideration and examining it from land point of view. The Military Estate Officer through his letter dated 6-10-1998 gave his no objection from land point of view for the construction of commercial building on the plot in question. After necessary processing, the defendant vide its letter dated 5-3-1999 approved the building plan which approval was for two basements, ground plus 9 floors building -with 10 feet compulsory open space on all the four side of the building. It seems that the plaintiff has submitted the proposed building plan for the construction of two basements, -ground plus 9 floors to the defendant which ultimately was approved by the defendant. With the approval of the building plan vide letter dated 5-3-1999, the defendant also granted permission to the plaintiff for starting construction of the building in accordance with the approved plan. This approval of the building plan by the defendant appears to have been accepted by the plaintiff and he commenced construction of the building. The plaintiff in the process of raising construction started making deviations from the approved plan and in this regard the defendant received complaint of one Haji Ahmed husband of the owner of adjacent Plot No.220, E.I. Lines, Dr. Daudpota Road, Saddar, Karachi. The complaint of the said Haji Ahmed was that the plaintiff was raising construction over the compulsory open space shown in the approved plan. Mst. Mamila wife of the said Haji Ahmed also filed a Constitutional Petition No.D- 1678 of 1999. In this petition a consent order dated 24-2-2000 was passed directing the removal of the unauthorized construction. The plaintiff however, continued with the construction of the building and realized that in the building plan it has submitted to the defendant there is no provision for making of an arcade in the front and back of the building and therefore, through his letter dated 3-5-1999 made a request to the defendant for making of necessary correction in the approved plan and granting of approval for construction of the arcade of 7 feet 6 inches. The defendant through its letter dated 19-7-1999 allowed construction of arcade on the ground floor in front and back of the building with condition that no construction whatsoever should be made over the arcade and the building plan endorsed with approval of construction of arcade of 7 feet 6 inches was sent alongwith this letter. In this approved plan with arcade the building shown is of up to 9th tloor. The plaintiff made further deviations from the approved plan in the building which was brought to his notice by the defendant vide letters 30-8-1999 and 4-11-1999 demanding demolition and removal of unauthorized construction. The plaintiff replied the said two notices by his two letters namely dated 16-10-1999 and 11-11-1999 wherein he explained and justified the deviations made from the approved building plan. It seems that while the building was in the process, of construction, plaintiff submitted to the defendant a Form-7 dated 18-4-2000 under Bye-Law 12 of the Building Bye-Laws of Cantonment Board Karachi for regularization of works carried out without permission and attached with such form three blue prints of revised building plan. The revised building plan inter alia shows a building of two basements, ground plus 16 storeys with arcade of 9 feet 1 inch towards Raja Ghazanfar Ali Khan Road and of 9 feet 4 inches towards Dr. Daudpota Road. It also show Chajja/Projection towards both sides of the building. As against total covered area of 2,25,630 square feet shown in the approved plan, the revised plan shows total covered area of 3,32,530.42 square feet. It seems that the defendant made no response to the Form-7 submitted by the plaintiff. The plaintiff then through his letter dated 14-6-2000 gave call attention notice under section 181 of the Act to the defendant. The plaintiff then wrote letter dated 30-6-2000 in which he informed the defendant that as the plaintiff has not received sanction of building plan within 15 days of receipt of the call attention notice, the revised building plans stands sanctioned unconditionally in items of section 181(6) of the Act. It is alleged by the plaintiff that on 5-7-2000 he received a back dated letter dated 26-6-2000 of the defendant by which the revised building plan was returned with objections noted in the said letter.
15. ' The learned counsel for the plaintiff during course of his argument has read the provision of section 181 of the Act while the learned counsel for the defendant has read sections 178-A, 179, 180, 181 of the Act and also Bye-Law 12 of Building Bye-Laws of the Cantonment Board Karachi. For convenience sake . The provision of sections 178-A to 181 of Act are reproduced below:- 178-A. Sanction for building:---<>No person shall erect or re-erect a building on any land in Cantonment, except with the previous sanction of the Board, nor otherwise than in accordance with the provisions of this Chapter and of the rules and Bye-Laws made under this Act relating to the erection and re-erection of buildings.
179. Notice of new buildings:--
(1) Whoever intends to erect or re-erect any building in a Cantonment shall apply for sanction by giving notice in writing of his intention to the Board.
(2) For the purposes of this Act, a person shall be deemed to erect or 4-erect a building who:---
(a) makes any material alteration or enlargement of any building, or
(b) converts into a place for human habitation any building not originally constructed for that purpose, or
(c) converts into more than one place for human habitation a building originally constructed as one such place, or
(d) converts two or more places of human habitation into a greater number of such places, or
(e) converts into a stable, cattle-shed or cow-house any building constructed for human habitation, or
(f) makes any alteration which there is reason to believe is likely to affect prejudicially the stability or safety of any building or the condition of any building in respect of drainage, sanitation or hygiene, or
(g) makes any alteration to any building which increases or diminishes the height of, or area converted by, or the cubic capacity of the building, or which reduces the cubic capacity of any room in the building below the minimum prescribed by any bye-law made under this Act.
180. Conditions of valid notice:--
(1) A person giving the notice required by section 179 shall specify the purpose for which it is intended to use the building to which such notice relates.
(2) No notice shall be valid until the information required under subsection (1) and any further information and plans which may be required under bye-laws made under this Act have been furnished to the satisfaction of the Board alongwith the notice.
16. 181 Power of Board to sanction or refuse:---
(1) The Board may either refuse to sanction the erection or re-erection, as the case may be. Of the building, or may sanction it either absolutely or subject to such directions as it thinks fit to make in writing in respect of all or any of the following matters, namely:--
(a) the free passage or way to be left in front of the building;
(b) the space to be left about the building to secure free circulation of air and facilitate scavenging and the prevention of fire;
(c) the ventilation of the building, the minimum cubic area of the rooms and the number and height of the storeys of which the building may consists;
(d) the provision and position of drains, latrines, urinals, cesspools or other receptacles for filth;
(e) the level and width of 'the foundation, the level of the lowest floor and the stability of the structure;
(f) the line of frontage with neighbouring buildings if the building abuts on a street;
(g) the means to be provided for egress from the building in case of fire;
(h) the materials and method of construction to be used for external and party walls for rooms, floors, fire places and chimneys;
(i) the height and slope of the roof above the uppermost floor upon which human beings are to live or cooking operations are to be carried on; and
(j) any other matter affecting the ventilation and sanitation of the buildings; and the person erecting or re- erecting the building shall obey all such written directions in every particulars.
(2) The Board may refuse to sanction the erection or re-erection of any building, either on grounds sufficient in the opinion of the Board affecting the particular building, or in pursuance of a general scheme sanctioned by the Competent Authority restricting the erection or re-erection of buildings within specified limits for the prevention of overcrowding or in the interests of persons residing within such limits or for any other public purpose.
17. (3)The Board, before sanctioning the erection or re-erection of a building on land which is under the management of the Military Estates Officer, shall refer the application to the Military Estate Officer for ascertaining whether there is any objection on the rf of Government to such erection or re-erection: and the Military Estate Officer shall return the application together with his report thereon to the Board within thirty days after it has been received by him.
(4) The Board may refuse to sanction the erection pr re-erection of any building:---
(a) when the land on which it is proposed to erect or re-erect the building is held on a lease from the Government if, the erection or re-erection constitutes a breach of the terms of the lease, or
(b) when the land on which it is proposed to erect or re-erect the building is not held on a lease from the Government, if the rights to build on such land is in dispute between the person applying for sanction and the Government.
(5) If the Board decides to refuse to sanction the erection or-re-erection of the building, it shall communicate in writing the reasons for such refusal to the person by whom notice was given.
(6) Where the Board neglects or omits, for one month after the receipt of a valid notice, to make and to deliver to the person who has given the notice any order of any nature specified in this section, and such person thereafter by a written communication sent by registered post to the Board calls the attention of the Board to the neglect or omission, then if such neglect or omission continues for a further period of fifteen days from the date of such communication the Board shall be deemed to have given sanction to the erection or re-erection, as the case may be unconditionally: ' Provided that, in any case to which the provisions of subsection (3) apply, the period of one month herein specified shall be reckoned from the date on which the Board has received the report referred to in that subsection.
18. ' Section -178 in specific terms lays down that no person shall erect or re-erect a building on any land in a Cantonment except with the previous sanction of the Board or otherwise in accordance with the provisions of this chapter and of the rules and bye-laws made under the Act relating to the erection and re-erection of the buildings. So the building on Cantonment land has to be erected or re-erected with the previous sanction of the. Board which has to be in accordance with provisions made in this chapter and rules and bye-laws made under the Act. Section 179 requires giving of notice of ereption or -re-erection of any building in a Cantonment and subsection (2) of it describes as to what erection or re-erection of building is; section 180 requires that a person giving a notice under section 179 shall specify the purpose for which it intend to use the building and subsection (2) of it provides that notice shall not be valid until information required under subsection (1) and any further information and compliance which may be required under _bye- laws made under the Act have been furnished to the satisfaction of the Board alongwith notice.
19. Section 181 lays down the power of the Board either to sanction or refuse to sanction the erection or re-erection of the building or may sanction it either absolutely subject to such directions as it thinks fit to make in writing in respect of matters enumerated under this section and person erecting or re-erecting the building has been made to obey all such written directions in every particular. Subsection (2) of this section empowers the Board to refuse the sanction the erection or re-erection of the building on ground sufficient in the opinion of the Board effecting the particular building or on the general scheme sanctioned by the competent authority restricting the erection or re-erection of the buildings within' specified limits for the prevention of the overcrowding or in the interest of persons residing within such limits or for any other public purpose. Subsection (3) provides for obtaining of no objection from the Military Estate Officer with regard to the land on which the building is proposed to be constructed. Subsection (4) empowers the Board to refuse sanction the erection or re-erection of the building when the land on which it is proposed to be erected or re-erected is held on lease from the Government and the erection or -re-erection constitutes breach of the terms of the lease or when the land on which it is proposed to erect or- re-erection the building is not held on lease from the Government if the right to build on such land is in dispute between the person applying for sanction and the Government. Subsection (5) requires communication in writing of the reason for refusal to erect or re-erect the building to the person who was given the notice. Subsection (6) provides that where Board neglects or omits, for one month after the. Receipt of the valid notice to make and to deliver to the person who has given the notice any order of any nature specified in this section and such person thereafter by written communication sent by registered post to the Board calls the attention of the Board to the neglect or the omission then if such neglect or omission continues for the further period of 15 days from the date of such communication the Board shall be deemed to have given sanction to the erection or re-erection as the case may be unconditionally. The proviso to this subsection lays down that in case to which the provision of subsection (3) apply the period of one month shall be reckoned from the date on which Board has received the report referred to in that subsection.
20. ' Bye-law 12 of the Building Bye-Laws of Cantonment Board Karachi is as follows:-- "12. Submission of deviated plans.---Where a person has erected or re-erected a building which is not in conformity with the building plan sanctioned by the Board, such person shall together with the report of completion of the building, submit a completion plan showing the building exactly completed and the deviations made in the building from the sanctioned building plan in Form-7 for consideration of the Board.
21. ' The perusal of the provision of section 178-A to section 181 abundantly shows that where a person intends to erect or re-erect any building in a Cantonment shall give notice in writing of his intention to the Board for sanction under section 179 of the Act and the Board under section 181 of the Act is required either to sanction or refuse to sanction the erection or re-erection of the building. Insofar as the case of the plaintiff is concerned, the plaintiff has given notice under section 179 of the Act dated 2-10-1998 of his intention to erect the building in the Cantonment and after processing of such notice, the defendant vide letter dated 5-3-1999 sanctioned the building plan which action of the defendant was in terms of section 181 of the Act. Such action of the defendant was accepted by the plaintiff and the plaintiff also started raising construction. During the course of construction of the building by the plaintiff the defendant received a complaint from the husband of Mst. Mamila the owner of adjacent plot that the construction being raised by the plaintiff was not in accordance with the approved plan and in this respect a C.P. No.D-1678 of 1999 was also filed by her in which the Official Assignee was appointed to inspect the building and submit report.
22. ' The Official Assignee submitted the report whereafter a consent order dated 24-2-2000 was passed in the said C.P. Wherein it was ordered that unauthorized construction be removed. There is nothing on record to show that the unauthorized construction in terms of the order dated 24-2- 2000 was removed. Plaintiff has filed a letter dated 30-5-2000 of Mst. Mamila which shows that she has withdrawn her complaint against the plaintiff but this letter nowhere shows that the unauthorized construction in terms of the order of the Court has been removed. Besides the defendant has also given notices dated 30-8-1999 and 4-11-1999 of removal of unauthorized construction to which plaintiff has given replies justifying unauthorized construction.
23. ' However, while the building was still in the process of construction that the plaintiff submitted Form-7 dated 18-4-2000 under Bye-Law No.12 of the Building Bye-Laws of Cantonment Board, Karachi with which was attached' three blue prints of revised building plan. After such form was submitted by the plaintiff, the plaintiff addressed to the defendant his letter dated 14-6-2002 purporting to be under section 181 (6) of the Act being call attention notice for sanctioning of the revised building plan within 15 days of the receipt of such notice. It is stated that the defendant also did not respond to this call attention notice and thereafter the plaintiff wrote letter dated 30-6- 2000 to the defendant wherein he took the stand that the revised building plan submitted by him under Form-7 dated 184-2000 stood sanctioned unconditionally in terms of section 181(6) of the Act. The plaintiff alleges that after the letter dated 30-6-2000 was addressed by him to the defendant that he received on 5-7-2000 a back dated letter dated 26-6-2000 of the defendant by which the revised building plan was returned to the plaintiff with objections noted' therein. Bye-Law No.12 which requires submission of Form-7 has already been reproduced above and it provides that where a person has erected or re-erected a building which is not in conformity with the building plan sanctioned by the Board, such person shall together with the report of completion of the building submit a completion plan showing the building exactly completed and the deviations made the building from the sanctioned building plan in Form-7 for consideration of the Board. It is not the case of the plaintiff that when he submitted Form-7 to the defendant, the building in question stood erected or that alongwith Form-7 he has submitted a report of completion of building with a completion plan showing the building completed and the deviations made in the building from the sanctioned building plan. Furthermore, it may also be noted that it is not shown that submission of Form-7 under Bye-Law 12- was similar to the notice as is required to be given for erection or re-erection of the building under section 179 of the Act. ' Form-7 dated 18-4-2000 being not a notice under section 179 of the Act, therefore, the subsequent call attention notice dated 14- 6-2000 and thereafter plaintiffs letter dated 30-6-2000 assuming that the building plan stood sanctioned unconditionally under section 181(6) of the Act was altogether a misconceived assumption because the provision of section 179 of the Act were never invoked/ by the plaintiff. It is not the case of the plaintiff that merely by submission of revised building plan, the provision of section 179 of the Act will automatically come into operation. Even if it be considered that the submission of revised building plan by the plaintiff was meant to invoke the provision of section 179 of the Act, then too it will need to be examined as to whether such a notice could be given by the plaintiff in the face of the plaintiff own assertion that it has already given such a notice vide its letter dated 2-10-1998 which was sanctioned by the defendant vide its letter dated 5-3-1999 against which plaintiff did not raise any objection as neither appeal under section 274 of the Act was filed nor any other legal proceeding initiated by the plaintiff. In so far as the plaintiff case is concerned, the provision of section 179 as well as 181 of the Act stood exhausted when the defendant sanctioned the plaintiff building plan vide its letter dated 5-3-1999. Learned counsel for the plaintiff has cited the case of Municipal Committee Hoshiarpor, Ram Naraindas and Iftikhar Siddiqui (supra). In so far as the first two cases are concerned, the notice under section 179 of the Act related to. New construction on the land and not sanctioning of revised building plan while the .Building was under construction as is the case in hand. The facts of Iftikhar Siddiqui case were somewhat similar with the present case as the plaintiff in the cited case while raising construction in terms of the approved plan has submitted to defendant revised building plan for addition of three additional storeys in the under construction building and it seems that defendant did not respond to the revised plan so submitted. On filing of suit with injunction application in this Court, order was passed by Rana Bhagwan Das, M. (as his lordship then was) wherein at page 379 it is observed as follows:-- "12. In the above quoted judgment the assertion made on behalf of the Cantonment Board about loss of notice in the office of former was also repelled with the observation that a party cannot be penalized for negligence on the part of statutory authority. In view of the legal position as above, the building plan approved in the event of omission on the part of Cantonment Board to refuse sanction thereof. Applying such principle to the present case, the plan submitted by the plaintiff having been sanctioned as above, the threatened action of demolition requires to be checked.
24. However, the Court cannot remain oblivious of the present situation and the problems faced by civic agencies in maintaining clean and hygienic environments. The sanction of building plan claimed, on account of omission or inaction on the part of the Cantonment Board under section 181
(6) of the Cantonment Act, 1924 has to be judged with circumspection and - care. For instance building plan submitted by a party could found totally contrary to the general town planning of the area. A party could then manipulate inaction on the part of Cantonment Board and assert sanction of the plan by virtue of the deeming -clause contained in the above referred provision. Some checks are, therefore, required to be read while giving effect to letter of the law contained in section 181(6) of the Cantonments Act. The question as to whether benefit of section 181(6) of the Cantonments Act can be claimed by a particular builder will have to be decided on the basis of circumstances and merits pertaining to the particular matter. What I wish to emphasize is that the sanction of plan in terms of section 181(6) of the Cantonments Act is not unqualified or absolute but can be checked on the touchstone of Master Plan of the area and the Environmental Control Regulations etc. If any. Indeed such factors can finally be agitated after evidence is adduced by the parties and it is shown that the plan does not suffer from an inherent defect or manifest shortcoming, as above. In the circumstances, an interim order in terms of mandatory injunction requiring the defendants to allow construction of three additional storeys cannot be granted.
13. Another aspect peculiar to the present case is that the plan for construction of additional storeys does not amount to 'erection' or `re-erection' of building. One possible interpretation of section 181(6) of the Cantonments Act, 1924 that the sanction stipulated thereunder applies to erection of building on an open plot and to a plan for demolition of the existing structure and re- erection of building in its place. The additional construction is not specifically mentioned in section 181(6) of the Cantonments Act. However, I am inclined to have such question for consideration and adjudication at the final stage.
25. ' It will be seen that this case is of no help to the plaintiff rather it goes against him in material respect as the revised building plan of the plaintiff in terms of the letter dated 4-6-2000 of the defendant was contrary to bye-laws of the Building Bye-Laws of Cantonment Board, Karachi.
26. As regards the second submission of the learned counsel for the plaintiff that the defendant has regularized construction over the arcade to Naz Plaza, M.A. Minnah Road, Karachi, the plaintiff under a legitimate expectancy has also raised construction over the arcade and that the defendant is liable to regularize such unauthorized construction. It may be noted that in the initial plan submitted by the plaintiff to the defendant, there was no mention of arcade and the plan sanctioned by the defendant also did not contain approval for construction of arcade. The plaintiff while raising construction of the building wrote to the defendant his letter dated 3-5-1999 wherein it is stated that due to error arcade has erroneously been neglected and that permission be accorded for construction of an arcade of 7'-6" as is permissible by the bye-laws. The defendant vide its letter dated 19-7-1999 allowed the construction of arcade on ground floor subject to the condition that the arcade towards Dr. Daudpota Road and Raja Ghazanfar Ali Khan Road shall be restricted to 7'-6" width and shall remain accessible and open for use by pedestrian, visitors and shoppers and no construction whatsoever should be made over the arcade. The building plan duly endorsed in this respect was sent to the plaintiff by the defendant by this letter. It seems that the plaintiff did not challenge this order of the defendant but rather started construction of additional columns and changed the orientation of the columns so also increased the height of the columns on the ground floor. The defendant vide its letter dated 30-8-1999 gave notice under section 185 of the Act to the plaintiff to demolish and remove unauthorized construction. Once again defendant through its letter dated 11-11-1999 gave notice under section 185 of the Act that the plaintiff was unauthorizedly erecting columns over arcade toward Dr. Daudpota Road and unauthorized project/ construction of landing staircases towards Plots Nos.220, 221 and demanded demolishing and removal of such unauthorized construction. In reply to the two notices, the plaintiff wrote his letters dated 16-10-1999 and 11-11-1999 wherein he justified such unauthorized construction.
27. However, no legal action against above referred two notices was taken by the plaintiff and they also continued to remain in the field. Learned counsel for the plaintiff has brought to my attention the fact that when the plaintiff has submitted initial notice for erection of the building and while such notice was under consideration of the defendant, the defendant has allowed to the plaintiff to advertise the project for booking purposes consequent to which, the plaintiff has issued advertisements alongwith model picture of the building in various newspapers which shows construction over the arcade. It may be noted that none of the advertisements that have been published in the newspapers is there any mention that the model of the building reflected in the advertisements has heed sanctioned and approved by the defendant. The plaintiff has asserted that the defendant has regularized construction over the arcade to Naz Plaza and the plaintiff be also treated similarly. In this regard, I have examined the record but find no material to substantiate the plea of the plaintiff that the defendant has regularized construction over the arcade of Naz Plaza. Except for bare allegation, no document has been shown to me that construction over arcade in Naz Plaza has been regularized by the defendant. There is no letter or order of the defendant in respect of Naz Plaza on the record. In so far the question of applicability of principle of legitimate expectancy, it may be noted that principle is applied where there is no specific provision of law to address the matter and through adoption of continuous usage and practice the principle has evolved of sticking to the same usage and practice for dealing with subsequent similar matters. This principle and its application has been explained in the case of Al- Mehad Trust v. Federation of Pakistan PLD 1996 SC 324 at page 532 as follows:-- "Article 193 of the Constitution empowers the President of Pakistan to appoint the Chief Mustice of the High Court.
28. ' Apparently there is no Constitutional requirement to appoint senior most Mudge as Chief Mustice of the High Court whenever permanent vacancy occurs in the High Court, but to secure the independence of Mudiciary from the Executive, it is necessary to advert to the Constitutional convention which has developed by the continous usage and practice over a long period of time.
29. The Constitutional convention to appoint most Senior Mudge of the High Court as a Chief Mustice, had been consistently followed in the High Courts since before partition of the sub-continent. The senior most Mudge has an edge over rest of the. Mudges of the High Court on the basis of his seniority and entertains a legitimate expectancy to be considered for appointment as Chief Mustice against Permanent vacancy of the office of the Chief Mustice. Apparently there is wisdom in following the Constitutional convention of appointing most senior Mudge of the High Court as permanent Chief Mustice, otherwise a junior most Mudge in the High Court may aspire to become Chief Mustice of the High Court by bypassing his seniors and to achieve this object resort to undesirable conduct by going out of his way to oblige the Government in power. If he succeeds in securing\ his appointment as Chief Mustice by superseding his seniors, by resorting to such measures he will endanger the independence of Mudiciary and destroy the public confidence in the judiciary. If a departure to follow the established convention of appointing the senior most Mudge is to be made, the appointing authority should record reasons for not appointing most senior Mudge as Chief Mustice of the High Court. The complexion of the Institution is likely to b,e impaired by so doing."
30. ' Learned counsel for the plaintiff on the strength of Bye-Law 20(2) has contended that it does not prohibit raising of construction over the arcade. Bye-Law 20(2) is as follows:-- "(2) The approved planning schemes of the Board may require the formation of arcades (verandah) within the property limit. The-minimum width of such arcades shall be 2.5 meters measured between the street line and the front of line shall not exceed 50 centimeters leaving a minimum clear space of 2 meters between the piers or columns and the front of the building."
31. ' The above quoted bye-law provides for an arcade which is between the street line and front of the building. Though arcade is a part of the building but is a separate pOrtion whose purpose is of only arcade (verandah). The Chambers 21st Century Dictionary Revised Edition gives the following meaning to the word arcade:-- "arcade 1. A covered walk or passage, usually lined with shops.
2. A row of arches supporting a roof, wall, etc.
3. An Amusement. Arcade."
32. It will be seen from the above meaning that the* arcade is an amenity provided in front of -the shops for the convenience of the shoppeis or for persons passing in front of the building or coming in or out of the building. It is not a part of the building Which the builder may use it for purpose other than arcade or may use it for the purpose of selling. The revised plan for 1st to 4th floor shows shops and stalls over the area of arcade whin obviously mean'that there will be no arcade but shops and stalls for the purpose of selling. This in my view is clearly against the mandate of Bye- Law 20(2). Therefore, the principle of legitimate expectancy is neither available nor can it be pressed in this case. Further there cannot be a legitimate expectancy to perpetuate an illegality.
33. ' The next contention of the learned counsel for the plaintiff is that the defendant has established a departmental practice of regularization of unauthorized construction and in this respect has referred to the . Instances of Meddah Center, Naz Plaza, Jinnah Avenue, International Center, Cambridge Luxury Apartments, Panorama Center, APWA Center and Elphi Gulleria and contended that such departmental practice is binding on the defendant and it should also be followed in the case of the plaintiff. In support of submission the learned counsel has relied upon the case of Chairman Regional Transport Authority, Arif Builders and Developers and Ramana Dayaram Shetty (supra). Though allegation in respect of these eight instances have been made in the plaint and there does not appear to be any specific denial by the defendant to such allegation but at the same time it was incumbent upon the plaintiff to have shown through relevant document as to the nature of unauthorized construction that have been made in these eight instances and the order of regularization that may has been passed in that respect. No such material has been filed or produced by the plaintiff. In the first cited case the Honourable Supreme Court of Pakistan has laid down principle regarding exercising of discretionary powers without discrimination, fairly, justly and reasonably. Similar proposition of law has been enunciated in the second case so also in the third case. It may be noted that the defendant through its letter dated 4-6-2000 has given the following reason for not accepting the revised/regularization plan submitted by the plaintiff:-- "(i) The revised/regularization plans are based on plot ratio 1:8 instead of 1:6 indicating proposed construction up to Ground + 16 floors with double basement reserved for parking. The plot ratio 1:8 does not conform to Building Bye-Laws of Karachi Cantonment Board.
(ii) The building is yet under construction and not complete.
(iii) You have built 10.-0" wide arcade instead of 7.-6" wide towards Dawood Pota Road with unauthorized construction over the arcade for which notice under section 185 followed by notice under section 256 of the Cantonments Act 1924 (II of 1924) vide No.KCB/221/EIL/99/3289 dated 4-11- 1999 and No. KCB/ 221/EIL/99/3713 dated 9-12-1999 have already been issued.
(iv) The revised/regularization plans indicate construction over the two arcades from 1st to subsequent floor and part of stairs in Compulsory Open Space which cannot be allowed being in contravention to Building Bye-; Laws."
34. ' The plaintiff ultimately filed an appear before the Director Military Lands and Cantonments- Karachi Region Karachi which appeal of the plaintiff was rejected vide order dated 20-3-20Q2. The relevant part of which is as follows:-- "Messrs Amin Chapal got a plan for the said shopping mall known as Chapal Navinta Mall approved from the Cantt.. Board on 5th March 1999 consisting of two basements, ground floor and 9 storeys. According to the prosecution, keeping in view the culture of those times they made certain deviations from , the sanctioned plan and submitted a revised plan incorporation these deviations for approval of the Board. They were prepared to pay composition fee/penalty for the deviations made. He also mentioned that such like deviations were earlier regularized by the Board in respect of other shopping malls in the Cantt.. Area. He, therefore, pleaded for the regularization of these deviations as the Board instead of approving them had ordered for their demolition. The Reps of the Cantt. Board Mr. Rashid Ahmed, Overseer confirmed that the plan of the Navinta Chappal Shopping Mall was approved by the Board for two basements, ground floor plies 9 storeys on 24-10-1998 with a total covered area of 2,25,630.00 Sq. Ft. However, the applicant deviated from the sanctioned plan, by making unauthorized construction in the compulsory -open spaces measuring 30828.50 Sq. Ft. Thereby committing serious violations of the Cantt. Building Bye-Laws 15(1). The Cantonment Board, therefore after considering the pros and cons of the case took, a decision vide its Resolution No.4 dated 27-10-2001 ordering that the unauthorized construction in the compulsory open spaces be demolished instead of compounding it. The Board is competent to take such a decision which is in accordance with the provisions of Cantt. Act, 1924. Therefore, the decision of the Board is in line with the law.
35. ' As far their quoting of examples of other such plazas where the Board had earlier resolved to regularize unauthorized construction, the undersigned is of the view that the Board was competent to do that, but such a course had generally encouraged massive deviations from the sanctioned plans which is not being appreciated. If the Board has now decided to uphold the sanctity of their building bye-laws by refusing the case of the applicant, it haS generally sent a message to the prospective buildings that no such violation of compulsory open space shall be allowed in the future in the Cantt. Areas which is a healthy sign for the development of Karachi Metropolis.
36. ' After hearing botliS thd parties, perusal of the approved will revised building plans and also perusal of the Cantt. Board Building Bye-Laws 15(1) and relevant provision of the Cantonment Act, the undersigned has reached the conclusion that the, Cantt. Board has acted according to law by not regularizing the encroachment made in the compulsory open space to uphold the sanctity of the Building Bye-Laws. The appeal on this account is, therefore, rejected.
37. ' As far the second part of their ' appeal regarding rejection of their revised plan for additional storeys from 9 to 16th floor, the applicant has based his claim on a verbal assurance given by the Cantt. Authorities and in view of a relaxed proposal for amending the building bye-laws of Karachi Cantt.. No such proposal was finalized and the maximum covered area with a ratio of 1 to 6 allowed under the building bye-laws, has already been utilized by the builders and there is no provision under the bye laws of Gantt. Board Karachi to allow construction beyond this ratio. The plea of the applicant, therefore, holds no water, legal or otherwise. The rejection of revised plan for allowing construction from 9 to 16 floors by the Board is justified under the rules. This request of the applicant being beyond the provision of law cannot be entertained."
38. ' The plaintiff did not challenge such order by any further legal proceeding. The defendant through its letter dated 12-3-2003 informed. The plaintiff of passing of Resolution 16 dated 22-2-2003 by the Board wherein the Board keeping in view all aspects of the case and recommendations made by Special Building and Works Committee resolved to restore the building according to the sanctioned/approved building plan as well as Building Bye:Laws of Karachi Cantonment Board and the plaintiff was directed to demolish all unauthorized construction and to restore the building according to the sanctioned/approved plan within 15 days. Pursuant to this letter, the plaintiff filed this suit. The plaintiff also filed an application for injunction being CMA No.1832 of 2003 in which on 15-4-2003 this Court passed an order of maintaining of status quo. The defendant filed an application against the plaintiff for violation of status quo order by way of CMA No.2565 of 2003 and also an application (CMA 2566 of 2003) for appointing Nazir to make inspection of the building. By order dated 17-6-2003 Nazir was appointed to inspect the construction and to take assistance of any technical hand in this regard. By order dated 20-6-2003 the Nazir was also appointed as Receiver of the property and allowed posting of guards at the expense of the plaintiff.
39. ' The Nazir submitted his report dated 23-6-2003 along with report of Imran Associates a technical person appointed by the Nazir. Messrs Imran Associates appears to have inspected the building in question and have submitted report dated 20-6-2003 in which the following deviations are noted;- -
(1) Structure of a multi-storeyed residential/commercial building having two basements, ground floor and nine upper floors were complete, some of the partition walls were built on ground floor.
(2) Construction of building was stopped by the Cantonment Board and the demolition on first and upper floors was in progress.
(3) Proposed plan of the building for two basements for car parking, ground to fourth floor for shops in split level, 5th floor for amenities with height of 12 feet on Daud Pota Road and .18 feet on Raja Ghazanfar Ali Road and 6th floor to 9th floor for residential units (Flats), was approved vide Karachi Cantonment Board letter No,KCB/221/ EIL/99/624, dated 5-3-1999, later on a revised plan was approved vide letter CBR No.9(B)(5) dated 25-5-1999 allowing 7'-6" Arcade on ground floor along Daud Pota Road and Raja Ghazanfar. Ali Road, with the condition that No Construction What So Ever Should Be Made the Over Arcade.
(4) Approved plans were found prepared in a very professional way, dimensions does not tally with each other.
(5) During visit gross violations of the approved plan were noticed which are as under:---
(a) entire framed structure of the building has been altered right from basement to the roof.
40. Positions of R.C.C. Columns and Beams have been changed throughout.
(b) Internal layout of spaces have been altered. Number of shops have been increased on each floor from ground to fourth floor. Two bed rooms flats converted to three bedroom flats and three bed room flats have been converted to four bedroom flats.
(c) Size of Atrium from ground floor to (sic) has been increased from 30'-0" x 30'-0" to 40'-0" x 40'-0" from ground floor to ninth floor.
(d) Arrangement has been made to provide two Capsule Lifts within the Atrium.
(e) Corners of Floors of four flats are projecting into the atrium from 6th floor to 9th floor.
41. (0 The width of 7'-6" wide Arcades on both road sides have increased 9-1" by covering the 2'-6 open to sky strip and remaining 11" have been included into main shopping area.
(g) Four staircases on north and south side of the building have been projected out of the building into the compulsory open spaces on both sides.
(h) Vocation of Cargo Lifts, Toilets and Electric Generators have been changed.
(i) Two emergency staircases from ground to 4th floor and four emergency staircases from 5th to 9th floor have been omitted.
(j) Main passage across the building running north-south has been reduced from .20' -0" to 15' -1" .
(k) Construction has been raised above the Arcade from 1st floor to 9th floor on both sides of the building.
(1) 4'-0" R.C.C. Slab projection at lintel level (7'-0" from floor slab) from 1st to 5th floor on north and south side of the building.
(m) 6'-0" Projection of R.C.C. Floors slab all around the building from. 6th to 9th floor to increase the floor area of flats.
(n) 5th floor has been converted to amenity instead of flats and flat starts from 6th floor instead of 5th floor.
(o) Floor area has been increased from 225, 630 sft. To 274,900 sft.
42. There is nothing before me to compare deviations that are quoted above and deviations that may have been made in the eight buildings which have been quoted as instances where unauthorized construction are stated to have been regularized. In order to determine the question of reasonableness in exercising of the power by State functionary and to examine whether discrimination has been made in the first place, there has to be evidence of unauthorized construction in the eight building and secondly to see its extent vis-a-vis of the plaintiff. The record in this respect is completely silent. In the absence of such record, no finding on this question can be given in favour of the plaintiff.
43. Further, it appears from the order passed in Appeal that the defendant has resolved not to authorize the unauthorized construction apparently seems to be realization by the , defendant as to the consequences that have flown from such exercise by it that the city of Karachi has practically been turned into a concrete jungle. No instance has been quoted by the plaintiff that the defendant since the date of the order in appeal has authorized unauthorized construction.
44. Besides, power given to the Board in section 185 of the Act to compose deviations in its true perspective is meant only for small, minor and trivial or absolute necessary deviations for the safety and betterment of the building and for those who will be its occupant but I in no circumstance, such a provision could be extended to the case where the complexion of the building is altogether changed from that of an approved plan. Further the power to compose in no circumstance is exercisable where the whole purpose is to provide extra or added built up area to the builder to sell and to make more money and profits from deviations of approved plan. It simply amounts to giving premium to violator of law and not only that it is a constant source of incurring more and more deviations with no end in sight. There will be legal sanctity in making of composition in such cases. As for the present case, the defendant appears to have acted in consonance with law.And such action of the defendant is also protected by section 27211 of the Act.
45. ' The next contention of the learned counsel for the plaintiff was that Bye-Law 136 of the Building Bye-Laws of Cantonment Board Karachi empowers the defendant to regularize the unauthorized construction and that such power should be exercised in the case of plaintiff, Bye-Law 136 is as follows:-- "136. Relaxation.---The Board may, by general or special orders, exempt any land or building from the operation of these or any of these bye-laws."
46. ' By this bye-law, Board has been given power to exempt any land or building from operation of these or any of these bye-laws. No instance or precedent has been quoted before me where the Board may have exempted any builder from operation of the bye-laws or any of them. In my view, this provision has been made to deal some special circumstance where for some special reason it will be expedient for relaxation of the operation of the bye-laws or any of them. This relaxation will not in my view be applicable to the ordinary and routine construction as that in the case of the plaintiff. There is nothing on the record from which I may draw support that this Bye-Law has been applied by the defendant in case of ordinary construction similar to that of the plaintiff. This exercise of the authority of relaxation of bye-laws by the defendant in the case of the plaintiff is therefore, not available.
47. ' The last contention of the learned counsel for the plaintiff is that the plaintiff building of 16 storey has a height of 150 feet which is permitted by Bye-Law No.15 of Building Bye-Laws of Cantonment Board, Karachi as both the roads in front and back of the building are of hundred feet and therefore, there is no illegality in construction of 16 storey building. Bye-Law No.15 is as follows:-- "15. Maximum built up area.---
(1) Buildings may have a built up area six times the area of the plot provided that the requirements of the compulsory open space around the building are maintained.
(2) All parts of a building rising above the height of 1-1/2 times the width of the road on which it abuts shall be so set-back as to be under the four plans drawn from the four sides of the permissible perimeter of the building at that height and inclined at an angle of 62 at the horizontal plane passing through these four sides."
48. ' There is no mention in this bye law about the permissible height of a building. It only provides that the built-up area of a building may be six times of the area of plot and if any part of a building having six times the area of plot rises above the height of 1-1/2 times the width of the road on which it abuts then such part of a building shall be set back as to be under the four plans drawn from the four sides of the permissible parameter of the building at the height inclined at an angle of 62 at the horizontal plane passing through the four sides. The defendant in its letter dated 4-6-2000 has refused to allow construction of 16 storey building for the reason that it will exceed the maximum permissible built-up area from six times the area of the area of plot to eight times the area of the plot. Such reason of the defendant is consistent with Bye-Law No.15 as quoted above and apparently there is no illegality in it. Plaintiff has not shown nor there is any thing on record to show that the 16 storey building has ratio of 1:6 and not 1:8 ' For the foregoing reasons, I have come to the conclusion that the suit has no merit and therefore, it is dismissed leaving the parties to bear theii. Own'costs.