1992 PLP 527 (MLD)

IMAM ALI G. KAZI, J.‑‑‑Mst. Feroza Hajiani and Syed Muslehuddin Ahmed respectively own residential plots bearing Plots Nos.249 and 346 situated in Blocks 7 and 8 of C.P. & Berar Cooperative Housing Society. Karachi. Respondent, Abdul Razzak, is the owner of a plot bearing No.248 to the same Society. The house of Mst. Feroza, petitioner No.l, is adjacent to the plot owned by respondent No.l while house of Syed Muslehuddin Ahmed, petitioner No.2, is in front of his plot. The respondent, Abdul Razzak, demolished a residential house constructed on his Plot No.248 and started raising construction afresh. The petitioners learnt that the respondent Abdul Razzak intended to construct high‑rise building having shops on its ground floor. The petitioners and other residents of the area protested against the proposed construction and filed their complaints before the Director‑General K.D.A. and the Karachi Building Control Authority, the respondent No .2 herein. As a result of the complaints, the Deputy Controller of Buildings under respondent No.2 issued a notice, dated 21‑5‑1991 to Abdul Razzak, the respondent No.l herein, to remove unauthorised structure within 24 hours of the receipt of notice as according to the notice he had done excavation work in excess of area.permitted to be constructed by them, In spite of such notice, the petitioners noticed that respondent Abdul Razzak was going ahead with his construction work. The petitioner No‑2 on enquiries was told that respondent Abdul Razzak had filed a suit in the Court of Ist Senior Civil Judge, Karachi (East) and, therefore, the respondent No.2 (Karachi Building Control Authority) were unable to take action on the basis of notice issued by them. The petitioners have filed this petition with a prayer that this honourable Court be pleased to direct the respondent No.2 to carry out and perform its statutory duties and in performance of their such duties restrain respondent No.l, his servants, his men, his agents and successors from unauthorised and illegal activities and also sought that the illegal structure raised by him be demolished. Abdul Razzak, respondent No.l herein, filed his counter‑affidavit denying the allegations made by the petitioners and specifically stated in para.9 of his counter‑affidavit that the area in question was a residential area and he was building only a residential house as approved and was neither constructing shops or flats in a high‑rise building. No counter‑affidavit has been filed by Karachi Building Control Authority. The petitioners as stated hereinabove had filed this petition on the allegations that respondent Abdul Razaak was raising a high‑rise commercial cum‑residential complex and that he intended to utilize more area in construction than is permitted under the Karachi Building and Town Planning Regulations, 1979, and that Karachi Building Control Authority, the respondent No.2 herein, were not performing their duty in accordance with law. Abdul Razzak, respondent No.l herein, in his counter‑affidavit has specifically denied the allegation of constructing a high‑rise commercial‑cum residential complex over his plot and has clarified that he has got permission to construct ground plus two floors for residential purpose only. He has, however, not specifically denied the second allegation specifically stated in paragraph 14 of the petition relating to the excess utilization of area in' construction that is being raised by him. Mr. Munirur Rehman; Advocate for the petitioners, contended that the Sindh Buildings Control Ordinance, 1979, was promulgated to regulate the planning, quality of construction, building control and other things embodied therein. An authority to enforce the provisions of the Ordinance was created to ensure proper planning and construction of buildings in the Province of Sindh. Regulations framed under the said Ordinance lay down rules for overall planning of towns and to control construction of buildings in accordance with specifications laid down therein and thereby ensure planned growth of a town ensuring amenities to the residents of such area. He further contended that in a case where statutory authority fails to perform its duty in accordance with law, a direction can be issued to it under Article 199(1)(a)(i) of the Constitution of Islamic Republic of Pakistan. He pressed his petition only on the second ground as on the first ground relating to construction of high‑rise building, the respondent had in unequivocal terms stated that he intended to construct a residential building comprising of ground plus two storeys in accordance with the approved plan. Mr. Umar Yousuf Deda, Advocate appearing for the respondent No. 1, mainly contended that the construction over the plot by the said respondent has been regularised by the order passed by the Deputy Controller of Buildings serving under respondent No.2 on 17‑2‑1991. He has placed a copy of such order on record. He further contended that in case there was any infringement of easement rights of the petitioners they could file a suit instead of fling this petition. According to him, the petitioners are also not aggrieved persons and, therefore, they cannot file this petition. Mr. Muhammad Ibrahim Dasti, Advocate appearing for respondent No.2 (Karachi Buildings Control Authority) contended that the authority is competent under section 19(1‑A) of the Sindh Buildings Control Ordinance, 1979, to compound offences under the Ordinance and regularise construction of building made in violation of the building regulations. He referred to regulations 16 and 20 of the Karachi Building and Town Planning Regulations, 1979, as such Regulations, according to him, spell out power to regularise construction made in contavention of the Building Regulations. Section 19(1) of the Sindh Buildings Control Ordinance, 1979, makes a provision for punishing persons for contravention of any provision of the' Ordinance while its subsection (1‑A) empowers the authority to compound any offence under the Ordinance on such terms and conditions as may be prescribed. Section 19 of the Sindh Buildings Control Ordinance, 1979, and Regulations 16(1) and 20 of the Regulations are reproduced below: ‑‑ Section 19 of the Sindh Buildings Control Ordinance, 1979: Penalty.‑‑‑(1) Whoever contravenes any provision of this Ordinance, shall be punished with simple imprisonment for a term not exceeding two years or with fine not less than twenty thousand rupees or with both and if the offence is a continuing one, further fine not exceeding five hundred rupees for each day after the date of the first commission of the offence. (1‑A) The Authority or any person authorised by it in this behalf may compound any offence under this Ordinance on such terms and conditions as may be prescribed. (2) ................. " Regulation 16(1) and Regulation 20 of the Karachi Building and Town Planning Regulations: "16.‑‑(1) If the building works are commenced or carried out contrary to the provisions of these regulations the concerned authority shall‑‑ (a) by written notice require the person who is carrying out such building works forthwith to stop all work thereupon; (b) by written notice require the person who is carrying out or has carried out such building works on or before such day as shall be specified in such notice by a statement in writing subscribed by him or by an agent duly authorised by him and addressed to the concerned authority to show sufficient cause why such building works or part thereof shall not be removed or altered to comply with these regulations; (c) require the said person on such day at such time and place as shall be specified in such notice to attend personally or through an agent duly authorised by him and show sufficient cause why such building works or part thereof shall not be removed or altered. (2) If such person fails to show sufficient cause to the satisfaction of the concerned authority why such building works or part thereof shall not be removed or altered the concerned Authority may take the following actions: (a) require the person who has carried out the works against the provisions of these regulations or any other statute, to demolish the whole building or part thereof; OR (b) to alter the works so as to bring it into conformity with, these regulations; OR (c) compound the offence after realization of composition fee on the merits of the case, provided that no offence shall be compounded if‑‑ (i) the building works or part thereof violate any requirements of the provisions of any sanctioned site development scheme; (ii) the building works obstruct any future road widening scheme of any concerned authority; (iii) the building work or part thereof exceeds the maximum permissible height and number of stories allowed under these regulations; (iv) the building work extends beyond the property limits except otherwise provided in section No.34. (v) the building work or part thereof violates fire or any other safety requirments; (vi) for any other violation of the Master Plan not falling in the above category, N.O.C. from the Master Plan and Environmental Control Department (Authority under Sindh Building Control Ordinance, ' 1979) shall be obtained before compounding of the offence." "20.‑‑(1) If on making any inspection under Regulation 19, the concerned authority finds that the building works‑‑‑ (a) are otherwise than in accordance with the plans that have been approved; or (b) contravene any of the provisions of the existing regulations or any statute, it may, by written notice require the person and the licensed architect carrying out building works within a period to be specified in such notice, with the object of bringing the works into conformity with the said plan or provision of these regulations to get amended plans approved after complying with the requirements of these regulations or statute. (2) In the event of non‑compliance with the (regulation) under subsection. (1) above, the concerned authority shall have power to order cessation of work or order demolition of that much of the construction as contravenes any of the provisions of these regulations and the expenses thereof shall be realised from the owner." The power conferred on the authority or its authorised person by the provisions of subsection (1‑A) of section 19 of the Ordinance and Regulation 16(1) of the Regulations is analogous to the right to compound offences and the power to permit compounding of an offence contained in section 345, Cr.P.C. Compounding of an offence in its ordinary sense means that a person against whom an offence has been committed agrees with the accused that he will not prosecute him on the condition of the latter making reparation. It is simply a composition reached on the basis of a compromise that the accused will not be prosecuted in a Court of law. This process merely absolves the accused or the offender from being prosecuted and saves him from the possible punishment on certain terms and conditions; but it cannot absolve him from the other consequences, as provided in the regulations, or contravention thereof. It cannot, therefore, be said that the power to compound an offence is synonymous with power to "regularise" erection of a building in violation of the regulations or that compounding of an offence ipso facto amounts to such "regularisation". Regulation 16(1) of the Regulations requires the Authority to, inter alia, require any person who has carried out building works contrary to the G provisions of the regulations to show cause why such building works or part thereof shall not be removed or altered to comply with the regulations and by regulation 16(2), paras. (a) and (b), the Authority shall require such person, if he fails to show sufficient cause, to demolish the whole building or part thereof or to alter the works so as to bring it in conformity with the Regulations. It, therefore, follows that the Legislature intended that any building or a part thereof erected in contravention of the Regulations must be removed or altered to conform to the Regulations. It is true that paras. (b) and (c) of Regulation 16(2) are separated by the conjunction "or"; but it has to be seen, in the light of the object of the Ordinance and the Regulations, and in order to give effect to the intention of the Legislature and to avoid absurdity the word "or" is used disconjunctively or conjunctively. Regulation 27 of the said Regulations, Part 1, provides that all space between buildings and plot boundaries and building shall comply with Chapters 7 and 8 of the Regulations relating to drainage and sanitation and to fire resistance and fire precautions and fire restrictive structural restrictive requirements and with Part 2 of the Regulations relating to town planning. Regulations 14 and 15 (Part Il) read with Schedules `G' and `H' respectively prescribe General Standards and Area Standards. The object and the consideration for prescribing Bulk, Height and Spatial Standards are set out in paras. 1(i) and 5(i) of Part 2 of Schedule `G' as follows:‑‑ "1(i).‑‑‑The standards in this Part are intended to achieve the best possible hygienic conditions to ensure healthy environment for urban residents and the best possible technical conditions to ensure their safety. Differing social and economic conditions in particular areas may warrant the application of different standards. In some cases these differences will be accommodated through the exercise of discretion by the concerned authority in the application of flexible standards provided in this part of Schedule G. In other cases, the differences will be reflected in area standards, referred to Schedule H, which have been specially designed for particular development schemes. Socio‑economic conditions may compel less hygienic and less safe conditions in some low income areas, but these are expected to be compensated by the planning of appropriate spatial arrangements and through the provision of appropriate municipal services. 5(i).‑‑‑The requirements for providing space about buildings are governed by hygienic and fire fighting considerations while these considerations result in defining the minimum space about a building of a given height, they also define the allowable maximum height of a construction in a given space " The requirements regarding the space to be left open, prescribed in Schedule G, are subject to the requirements prescribed in Schedule H containing area standards. Schedule H incorporates, by reference, detailed plans, incorporating area standards which have been identified in Schedule B, to Part 11 of the Regulations. Item 22 of Schedule B, relating to Karachi Cooperative Housing Societies Union (28 Societies), identifies the restrictive provisions as KMC Building Bye‑Laws, 1972, lease deed and allotment conditions. Zoning regulations for residential plots in Karachi Cooperative Housing Societies Union provide that House Building Rules and Regulations of Karachi Metropolitan Corporation will be enforced striclty and that for buildings on plots ranging from 301 to 500 square yards, buildings will be allowed to abut on street line but 7‑1/2' from other boundaries should be left open. The object and the consideration for the rule requiring minimum open spaces to be left in any building are thus, to ensure safe and hygienic conditions of living for the citizens in general. They do not concern any one individual alone. The regulations contained to Chapters 7 and 8 relating to drainage and sanitation and fire precautions are similarly intended to ensure healthy and safe living for the public in general. It could not, therefore, have been the intention of the legislature to confer a power on the Authority to condone, by regularising, erection of a building so erected as to adversely affect and endanger the health and safety of the citizens. The intention evidently was that any building erected in violation of the Regulations must either be demolished completely or in part, as may be necessary, or so altered as to conform to the regulations. Further, it would be absurd to say that on the one hand regulations have been framed for the purpose of ensuring the safety and the health of the citizens and on the other hand that the Legislature intended to confer power on the Authority to condone violation of those very regulations and thus defeat the object and the purpose thereof. The conjunction "or" occurring between paras. (b) and (c) of Regulation 16(2) has, therefore, to be read as "and". That being so, there is no power in the Authority and any of its officers to condone violation of the Regulations by regularising a building erected in contravention thereof. Authority and/or its officers can only compound the offence after a delinquent builder has put the building in order in accordance with the Regulations pursuant to the action taken under orders passed either under Regulation 16(2)(a) or Regulation 16(2)(b) of the Karachi Building and Town Planning Regulations, Part I. Apart from the regulations mentioned above, Regulations 23, 24 and 25 are also relevant. They are reproduced below: ‑‑ "

23. Where a person erected or re‑erected or commenced to erect or re -erect a building without submitting to the concerned authority building plan for sanction then notwithstanding and in addition to, any other action that the concerned authority may take under the relevant statute and these regulations, the concerned authority may give notice. in writing directing such person to submit to the authority within such time as specified in the notice, building plans in accordance with these regulations showing the buildings so erected or re‑erected or proposed to be re‑erected.

24. Where a person has erected or re‑erected, a building which is not in conformity with the building plan sanctioned by the concerned authority in any manner whatsoever such person shall together with the report of completion of the building, submit a completion plan showing the building exactly as completed and the deviations made in the building from the sanctioned building plan through a licensed Architect/Civil Engineer Building/Technologist as the case may be on prescribed form for consideration of the concerned authority provided it is in accordance with these regulations.

25. The concenred authority may refuse permission to erect or re‑erect a building and sanction building plan or completion plan, if the proposed or completed building contravenes or is in any manner inconsistent with any building or zoning regulations or restrictions, or order or direction whether made under the relevant statute or the regulations or terms and conditions or covenant of lease whether express, or implied, or any building custom or practice, by whatever name called, laid down or hereto for generally imposed or followed by the Government, or any local Government body, cooperative housing society, generally or in respect of building operation in any particular area." It will be noticed that while a person may not erect or commence erection of a building without first obtaining approval for the plan of the building proposed to be erected, Rule 23 provides that if he does so, he may submit to the Authority building plans "in accordance with these regulations". Similarly, if a person erects a building which is not in conformity with the approved building plan he is required by Regulation 24 to submit a completion plan showing the building exactly as completed and the deviations from the sanctioned plan for consideration of the concerned authority "provided it is in accordance with these regulations". The effect of these provisions appears to be that so long as, the building does not contravene the Regulations, plans may be submitted for approval under Regulation 23 or, as the case may be, Regulation 24; and the f deviations contemplated under Rule 24 are those which do not contravene the regulations framed in the interest of the health and safety of the public in general. Such deviations may include, for example, more or less rooms than, provided for in the sanctioned plan or shifting of a particular room or facility to' a place other than the one in 'the sanctioned plan. That the deviation of any other kind and contravening the Regulations are not permissible is shown by the words "provided it is in accordance with these regulations." In this view of the matter, it is to be considered whether Regulation 25 confers any power to regularise a building which is in contravention of the Regulations. That Regulation provides that the concerned authority may refuse, inter alia, to sanction a completion plan if the completed building is in any manner inconsistent with any building or zoning regulations or restrictions. In view of the object and the purpose of the Regulations, we are of the view that the word "may" ought to be read as "must"‑so that there is no discretion in the Authority to sanction plans which violate the Regulations intended for public benefit. If it' were held otherwise, the Authority would have the power to sanction plans even of those buildings which have been erected in breach of the terms and conditions of a lease. The Legislature could not possibly have intended the Authority to have such a power by exercise of which a person may be encouraged to commit breach of the terms of a lease which is binding on him. The order produced by respondent Abdul Razzak regularising the subsequent plan filed by him merely shows that the building plan was approved for construction of ground plus two upper floors only. The order does not, however, allow him to reduce the open space required to be left under the regulations. Indeed, no such order could have been made. The only contention raised by Mr. Dasti Muhammad Ibrahim, Advocate for respondent No.2 is not sustainable in view of what has been stated above. The petitioners in this case have claimed that their rights of enjoyment of their property is being violated by respondent No.l because the respondent No.2, the Authority under statute, has failed to perform their statutory duties. The petitioners under the circumstances can competently pursue their remedy through the present Constitution petition. This view is supported by the dictum of law laid down by the hon'ble Supreme Court of Pakistan in the case of Mian Fazal Din v. Lahore Improvement Trust, Lahore, reported in PLD 1969 SC' 223 in this respect. The first contention of Mr. Umar Yousuf Deda, Advocate for the respondent No.l, cannot, therefore, be sustained. In view of the above finding, the petitioners are aggrieved persons within the meaning of Article 199 of the Constitution of Islamic Republic of h Pakistan. Respondent Abdul Razzak has not specifically denied in his counter affidavit that he is not exceeding the maximum permissible plinth area or that he has not left minimum open space required by the regulations to be kept open between structure and the compound wall. It is, therefore, the duty of respondent No.2 to ensure that the building erected or being erected is in accordance with the regulations. This petition is accordingly allowed and the respondent No.2 is directed to ensure that the building erected or being erected by the respondent No.l is in accordance with the regulations and to enforce the relevant regulations in respect thereof. AA./F‑179/K Petition accepted.