P L D 1994 Supreme Court (PLP)

(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 storeys 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 requirements; (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 Buildings Control Ordinance, 1979) shall be obtained before compounding of the offence." "Regulation No.20: ] "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 on 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) made under sub section (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 provision of these regulations and the expenses thereof shall be realized from the owner. "Regulation No. 25:

25. The concerned 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 covenants 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." A perusal of the above‑quoted regulations indicates that they are overlapping with each other and cover the same field. They empower the Authority to take any of the actions mentioned therein. Clause 1(a) of para. 1 of Regulation No.16 empowers the Authority to stop construction work if it is violative of any of the Regulations, whereas under clauses (b) and (c), the Authority can issue a show‑cause notice for the purpose mentioned therein. It may further be noticed that under para. 2 of the above Regulation the Authority has been empowered to take actions under clauses (a), (b) and (c) thereof if the person concerned fails to show cause in response to the notice of show cause issued either under clause (b) or clause (c) of above para.

1. It may be pointed out that Regulation Nos.2 deals inter alia with regularization of unauthorized construction if the same can be brought in conformity with the Regulations, whereas Regulation Nos.25 provides that the Authority may refuse permission to erect or re‑erect a building.

10. We may now revert to Mr. Suleman Kassam's above contentions (i) and (ii), which can be conveniently taken up together. It is an admitted position that respondent No.3 and the other residents of the Society inter alia approached the Authority complaining about the then intended unathorised construction. Thereupon, the Authority issued above notice dated 21‑5‑1990, wherein it was pointed out to the appellant Abdul Razak that the excavation work which was in progress, was in excess area contrary to the approved plan. He was given 24 hours to rectify the above unauthorised construction work. It appears that upon the receipt of the above notice, the appellant Abdul Razak filed a civil suit in the Court of a Civil Judge at Karachi and obtained a status quo order. Under the cover of the above status quo order, he continued to go on with the unauthorised construction work. The Authority showed its inability to take any further action pursuant to the above notice on the ground that the matter was sub judice in the Civil Court. In the above factual background, respondents Nos.2 and 3 filed the above writ petition. In the above petition they also filed an application for an ad interim injunction against the appellant Abdul Razak. In reply to the above application, the appellant Abdul Razak filed a counter‑affidavit, in which in para. 9 he made the following averment:‑ "9 That the contents of para. 6 are not denied that the area is residential one, but at the same time it is re‑emphasized that the respondent No.l is building only a residential house as approved and is not building shops or flats or high rise building which presumption is concocted and is the figment of the imagination of the petitioner. The petitioners have raised a false alarm and created a bogey of construction of shops, flats and high rise building in order to make out a false case with ulterior motives." A Division Bench of the Sindh High Court by its order dated 31‑10‑1990 on the basis of the above averment contained in para. 9 coupled with the oral commitment made by the learned counsel for the appellant Abdul Razak, disposed of the above stay application in the following terms:‑‑ "Apart from the above statement of respondent No.l contained in the counter‑affidavit, the learned counsel for respondent No.l categorically stated before us that the building which is being constructed on the disputed plot is purely a residential building and that respondent No.l has neither constructed any shops or flats on the plot nor has any intention to raise any such construction. It is also categorically stated by the learned counsel that the building constructed on the plot comprised of only ground plus two stores approved by the Building Control Authority and that his client has no intention to raise any further construction. In view of the above statement of respondent No.1 which is contained in the counter‑affidavit and that of his learned counsel made today before us and which we have recorded, any breach thereof will be treated as a breach of injunction, we do not think it necessary to make any further order on this application which stands disposed of accordingly."

11. It is evident from the above‑quoted para. 9 of the counter‑affidavit and the statement made by the learned counsel for the appellant.Abdul Razak that he made commitment that he would not construct shops or flats or high‑rise buildings on the plot in dispute. However, while the above petition was pending, the appellant Abdul Razak completed the construction. work. According to respondent No.3 the appellant‑Abdul Razak has constructed six flats comprising 24 bedrooms, 12 bath rooms, six T.V. Lounges on the disputed plot, the size of which is only 273 sq. yards.

12. Admittedly the appellant Abdul Razak started construction work in deviation of the approved plan which was approved as pointed out hereinabove on 12‑4‑1990. It is also an admitted position that the Authority served above notice dated 21‑5‑1990 calling upon appellant Abdul Razak to rectify the above unauthorised construction within 24 hours. As stated hereinabove, the appellant Abdul Razak gave above commitment to the effect that he would not construct shops or flats or high‑rise buildings before the Division Bench during the hearing of the stay application but apparently he completed the building not in accordance with the original plan approved by the Authority. He got regularisation plan approved during the pendency of the above writ petition, but the High Court allowed the above writ petition in the above terms for the following reasons:‑‑ "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 maybe 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 conjecture "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 1 . ... .. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . ... ... ... ... ..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: A perusal of the above‑quoted portions of the impugned judgment of the High Court indicates that the High Court has taken the view that the word "or" appearing between sub‑paras. (b) and (c) of para. .2 of Regulation 16 is to be read as "and" and, therefore, there was no power in the Authority and any of its officers to condone the violation of the Regulations by regularising a building erected in contravention thereof. The High Court also opined that the word "may" used in above‑quoted Regulation No.25 which empowers the Authority to refuse permission to erect or re‑erect a building in airy manner inconsistent with any building or zoning regulations. or restrictions or order or direction.

14. According to Mr. Suleman Kassam, the word "or" employed between sub‑paras. (b) and (c) of para. 2 of Regulation No.16 could not have been construed as the word "and" as to make them readable conjunctively and not disjunctively. In this regard, it may be pertinent to quote the following passages from Maxwell on the Interpretation of Statutes, 12th Edition at pages 232 and 233 and from Crawford on Statutory Construction, 1940 Edition at pages 322 and 323:‑‑ "Passage from the Maxwell on the Interpretation of Statutes. 12th Edition.‑‑‑"And" and "or" .In ordinary usage, "and" is conjunctive and "or" disjunctive. But to carry out the intention of the legislature it may be necessary to read "and" in place of the conjunction "or" and vice versa." Passage from the Crawford on Statutory Construction: ` "

188. Disjunctive and conjunctive words.‑‑In ordinary use the word "or" is a disjunctive that marks an alternative which generally corresponds to the word "either". In face of this meaning, however, the word "or" and the word "and" are often used interchangeably. As a result of this common and careless use of the two words in legislation, there are occasions when the Court, through construction, may change one to the other. This cannot be done if the statute's meaning is clear, or if the alteration operates to change the meaning of the law. It is proper only in order to more accurately express, or to carry out the obvious intent of the legislature, when the statute itself furnishes cogent proof of the error of the legislature, and especially where it will avoid absurd or impossible consequences, or operate to harmonize the statute and give effect to all of its provisions."

15. From the above‑quoted passages from the above celebrated treatises on the interpretation of Statutes, it is evident that the words "and" and "or" are interchangeable. However, in ordinary usage the word "and" is conjunctive and the word "or" is disjunctive. But to implement the legislative intent, it may become imperative to read "and" in place of the conjunction "or" and vice versa. This cannot be done if the meaning of the relevant provision of the statute is clear or if the above construction will operate to change the meaning of the law.

16. In the' present case, since the word "or" appears twice between clauses (a) and (b) and clauses (b) and (c) of para. 2 of Regulation No.16 and as sub‑clauses (i) to (vi) of sub‑para. (c) expressly provide the cases in which the offence cannot be compounded, we are inclined to hold that the word "or" used between clauses (b) and (c) of para. 2 of Regulation No.16 is to be read as "or" and not as "and" as held by the High Court. However; this does not affect the result of the present case. The above sub‑clauses (i) to (vi) of clause (c) of para. 2 of Regulation No.16 make it clear that in the cases covered by them, the offence cannot be compounded, namely, if the building works or part thereof violate any requirement of the provision of any sanctioned site development scheme, the building works obstruct any future road widening scheme of any concerned authority, or the building works or part thereof exceed the maximum permissible height and number of storeys allowed under the Regulations, the building works extend the property limits except otherwise provided is section No.34 or the Building works or part thereof violate or any other safety requirement or for any other violation of the master plan not falling in the above category. Similarly the word "may" used in Regulation No.25 is to be construed as "may" and not "must" as has peen held by the High Court. But it does not mean that discretion contained therein can be exercised by the Authority in derogation or violation of the provisions of the Ordinance and the Regulations. The High Court, after referring, to the relevant regulations, concluded as under:‑‑ "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 in 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."

17. We are inclined to concur with the above conclusion of the High Court. We may observe that the discretion given to the Authority under section 19 of the Ordinance or under Regulation No.16 to compound an offence or discretion given by Regulations Nos.20 and 25 is subject to the well settled principle of legal jurisprudence that discretion is to be exercised fairly and reasonably and not at the cost or prejudice of third parties. We may also point out that there is marked distinction between a criminal liability under section 19 of the Ordinance and a civil liability under the Regulations to rectify irregularity/breaches. The Authority may compound criminal liability but it cannot regularise a breach of the Regulations which is of the nature which has changed the complexion or character of the structure, which was originally intended to be erected or of the plot. In such cases, it can be said that the Authority has no discretion in fact and law. The plot in dispute was intended to have residential bungalow, it was not earmarked as flats' site. It is a matter of common knowledge that in the various KDA. schemes the plots are, categorised as residential plots, flats' sites, commercial plots and industrial plots. We may point out that even under the Order, the KDA. is not authorised to change the use of any amenity plot without inviting objections and without obtaining the order of the Government. In this regard, it may be advantageous to reproduce Article 52A of the Order, which reads as follows:‑‑ "52‑A.‑‑(1) The ,Authority shall, immediately after any housing scheme is sanctioned by, or altered with approval of, Government, submit to the Commissioner the details including the survey numbers,, area and location of each plot reserved for roads, hospitals, schools, colleges, libraries, playgrounds, gardens, parks, community centers, mosques, graveyards or such other purpose and the Commissioner shall notify such details in the official Gazette. (2) The Authority or the Housing Society may at any time prior to utilization of any plot reserved for the purpose mentioned in subsection (1), apply to the Commissioner for conversion of such plot to any other purpose. (3) The Commissioner shall, on receipt of an application under' sub section (2), invite objections from the general public through a notice published in one English and one vernacular leading local daily newspaper and the objections, if any, shall be submitted to the Commissioner within 30 days from the date of the publication of the notice. (4) The Commissioner shall, after considering the objections received under subsection (3) and hearing such persons as he may consider necessary forward his recommendations alongwith the application and other connected papers to Government for orders." ,,

18. It may be stated that in spite of presence of the above unambiguous Article in the Order the successive Provincial Governments overlooked the above Article and converted amenity plots into commercial or residential plots and thereby denied to the residents of Karachi inter alia parks and play grounds which contributed towards environmental pollution in the city. A tendency has also developed to convert the use of a residential plot into commercial or instead of constructing residential units in the form of bungalows to erect flats.

19. Respondent No.3 in the memo. of above writ petition inter alia in paras. 15 to 17 has highlighted the breaches on the part of the appellant Abdul Razak and the effect of the above breaches on him and the other residents of the locality as under:‑‑ "

15. That the respondent No.l has also encroached upon on compulsory open space in violation of the approved plan; which have not been noticed by the respondent No.2/Authority and a rough sketch is attached . herewith as Annexure "K" showing encroachment on compulsory open space.

16. That the respondent No. 1, therefore, in gross and direct violation of the approval granted by the respondent No.2, in violation of Ordinance of 1979 and regulations, is proceeding with the construction of building and is in collusion with respondent No.2 and in total disregard of the rights of the petitioners are carrying on construction work and have .erected R.C.C. Columns and fixing shutterings for R.C.C. roof of ground floor.

17. That the construction of a commercial building directly adjacent and. opposite the petitioners' house will seriously impair the right of enjoyment of property, their privacy will be violated, the entire area including the petitioners' house would suffer from shortage of electricity, water and the narrow sewerage lines, designed to provide for residential houses will be chocked and further the area will suffer from traffic congestion and the narrow street will be blocked by the great number of vehicles moving as well as parking." 19‑A. The Authority though has allegedly regularised the present construction through its letter dated 12‑2‑1991 but has not stated any reason for doing so. It has not adverted to the question, whether the irregularities/breaches were of the nature, which could have been regularized. The High . Court in the judgment under appeal has highlighted that the breaches of the Regulations were such which are prejudicial to safe and hygienic conditions of living for the citizens and detrimental to health. In this view of the matter, the above regularisation is in violation of the spirit of the Ordinance and the Regulations. The power to regularise contained in the Ordinance and the Regulations is intended and designed to be exercised when irregularity is of the nature which does not change the complexion or character of the original proposed construction nor it adversely affects third parties' rights/interests. At this juncture it may be pertinent to quote a passage from Encyclopedia Britannic, 1963 Edition, the goals of modern City planning at page 816, which reads as follows:‑‑ "Goals of Modern City Planning‑‑The ultimate goals were social, although the plans themselves related to physical things. They were deeply involved with intermediate economic objectives.. The expression of the goals was, of course, coloured by the culture of the society seeking them. In the U.S. and countries following western European traditions, the ideal urban environment would reconcile the maximum opportunity for individual choice with protection for the individual from the adverse effects of the actions of others. Within this philosophy, city planning would probably seek: (1) the orderly arrangement of parts of the city ‑ residential, business, industrial, etc., so that each part could perform its functions with minimum cost and conflict; (2) an efficient system of circulation within the city and to the outside world, using to the maximum advantage all modes of transportation; (3) the development of each part of the city to optimum standards, as of lot. size, sunlight and green space in residential areas, and parking and building spacing in business areas; (4) the provision of safe, sanitary and comfortable housing, in a variety of dwelling types to meet the needs of all families; (5) the provision of recreation, schools and other community services, of a high standard of size, location and quality; (6) the provision of adequate and economical water supply, sewerage, utilities and public services. In any community, these goals might be supplemented by special goals, such as the preservation of a historical area, or the protection of property values, or the efficient conduct of Government. On occasion, the goals of some powerful special interests might be inconsistent with those of others; e.g. the preservation of slum property values and the provision of adequate housing. Furthermore, the statement of ideal goals required the use of relative terms, such as "adequate," "high standard," etc., which are relative rather than absolute, and change from time to time. Therefore inherent in the concept was the recognition that an ideal is not a fixed objective, but itself will change; that the ideal city can be striven toward, but never achieved."

20. From the above‑quoted passage from Encyclopedia Britannic, it is evident that the concept of modern city planning inter alia envisages the orderly arrangement of parts of the city ‑ residential, business and industrial etc. so that each part could perform its functions .with minimum cost and conflict. The paramount object of modern city planning seems to be to ensure maximum comforts for the residents of the city by providing maximum facilities referred to hereinabove. It must, therefore, follow that a public functionary entrusted with the work to achieve the above objective cannot act in a manner, which may defeat the above objective. Deviation from the planned scheme will naturally result in discomfort? and inconvenience to others. Respondent No3 in the above‑quoted paras. 15 to 17 of the memo. of petition has rightly highlighted ‑that the Society in which the plot is situated was planned on the assumption that a 273 sq. yards would have normal residential units and not flats.

21. It may be mentioned that framing of a housing scheme does not mean simpliciter, levelling of land and carving out of plots, but it also involves working out approximate requirements of water, electricity, gas, sewerage lines, streets and roads etc. If a housing scheme is framed on the assumption that it will have residential units 1 +

1. But factually the allottees of the plots are allowed to raise multi‑storeyed buildings having flats, the above public utility services will fall short of requirements, with the result that everyone living in the aforesaid scheme will suffer. This is what has happened in Karachi. Without any planning and without expanding the provisions of the above items of public utility services, the people were allowed to erect multi‑storeyed buildings having shops and flats. In consequence thereof everyone living in Karachi is suffering. There is scarcity of water, some people even do not get drinking water. The above other items of the public utility services are short of demand. Roads and streets are normally flooded with filthy and stinking water on account of choking and overflowing of sewerage lines. To reduce the miseries of most of the Karachiites, it is imperative on the public functionaries like the Authority to ensure the adherence to the Regulations. However, it may be clarified that it may not be understood that once a scheme is framed, no alterations can be made. Alterations in a scheme can be made for the good of the people at large, but not for the benefit of an individual for favouring him at the cost of other people. It may be stated that under Article 30 of the Order, the KDA. has been empowered to execute the following types of schemes:‑‑ (a) a general improvement scheme; (b) a re‑building scheme; (c) a re‑housing scheme; (d) a street scheme; (e) a deferred street scheme; (f) .a development scheme; (g) a housing accommodation scheme; (h) a town‑expansion scheme;, (i) a zonal plans scheme; (j) a transport scheme; (k) a drainage and sewage disposal scheme; (1) a scheme for the re‑distribution of sites; and (m) health and welfare scheme; The above scheme include re‑framing of schemes.

22. As regards the third submission of Mr. Suleman Kassam, it may be stated that there is nothing on record to indicate the size of the plot in dispute. However, respondent No.3 in his written submission, has stated the size of the plot as 273 sq. yards. It is the case of appellant Abdul Razak that the size of the plot is less than 300 sq. yards. The High Court in the impugned judgment has referred to plots ranging from 301 to 500 sq. yards. The mentioning. of the above dimensions does not affect the result of the present case as the zoning regulations for residential plots relating to Cooperative Housing Societies Union Limited in which the plot in dispute is situated provides as under for the plots ranging from 150 to 300 sq. yards:‑‑ "Houses on plots ranging from 150 to 300 sq. yards‑‑ (a) one‑third of the area should be left open; (b) ground floor and one storey will be allowed; (c) building will be allowed to abut on street line; (d) clear ceiling of living rooms should be 12 ft. on ground floor and 10 ft. on 1st floor; (e) no roofs other than RCC will be allowed; ‑ (f) shops etc. will not be allowed."

23. The High Court in the above direction has directed the Authority to ensure that the construction put up by the appellant Abdul Razak should conform to the Regulations. The Regulations would be they which are applicable to the plots measuring from 150 to 300 sq. yards.

24. Mr. Azhar Ali Siddiqui, learned counsel for the appellant Abdul Razak's submission is that in the petition respondents Nos.2 and 3 had not specified the violation of, any specific regulation, it will suffice to observe that it was not necessary to specify the breaches of specific Regulations. It was sufficient to state that the appellant was carrying out construction in violation of the approved building plan. The above respondents besides making above averment has highlighted the nature of breaches in the memo. of writ petition. The other contention of Mr. Azhar Ali Siddiqui that as the appellant Abdul Razak had completed construction as per regularised plan, the High Court was not justified to grant the above relief, it may be pointed out that respondents Nos.2 and 3 had approached the Authority when the excavation work was in progress and no structure was constructed by then. The appellant Abdul Razak after obtaining a status quo order from the Civil Court expedited the work in order to create a fait accompli and to render the above respondents' efforts fruitless. When the above writ petition was filed the work was still in progress and even the structure of third floor was not constructed. The appellant Abdul Razak made the above statement before the High Court that he was not going to construct flats. The above statement was treated as an undertaking, the breach of which was to be treated as a breach of injunction. In the above factual background, it does not lie in the mouth of the appellant Abdul Razak to urge that the High Court was not justified in granting the above relief.

25. The upshot of the above discussion is that with the above clarification/modification, the above appeals are dismissed. However, there will be no order as to costs. M.B.A./A‑1145/S Order accordingly