1994CLC211 (PLP)

SYED HAIDER ALI PIRZADA, J: ‑‑The petitioners through this petition have claimed the following reliefs:‑‑ "(a) declare that the inaction/refusal/neglect of respondents in permitting the 6 additional floors and approving the additional plans is without lawful authority and of no legal effect; (b) direct the respondents to permit/grant the approval of 6 additional floors on charging fees of RS.30 per sq. yard for each floor and to approve the plans submitted with this petition for the said floors without any further delay; (c) direct the respondent No.l also to include the additional 6 floors, that is, area for sale, in the already issued `N.O.C.' for advertising and booking; (d) prohibit and restrain the respondents from interfering with the petitioners' raising construction on the plot in question in accordance with the plans already approved and also for the 6 additional floors according to the plans submitted with this petition themselves or through any agency in any manner and by any process whatsoever; (e) direct the respondent to bear the cost; and (f) grant any other relief which this Hon'ble Court deems fit and proper in the circumstances of the case." The facts leading to the filing of the above petition are that the plot of land bearing Survey No.13, Sheet F.T. 4, admeasuring 4524 square yards or thereabout, situated at main Clifton Road, Karachi was purchased by the petitioner No. 1, Soofi Muhammad Ismail and his son Tariq Shaikh. Soofi Muhammad Ismail and Tariq Shaikh afterwards sold their shares to petitioner No.

2. The petitioners are thus owners of the said plot of land. The said plot is situated on the main Clifton Road frontage thereof abuts the said road and on the back of the plot is 79 feet wide Bath Island Road. The case of the petitioners, as set out in the memo. of petition, is that all the plots (with exceptions of very few plots) situated on the main Clifton Road, after passing the Clifton Bridge, are commercial plots and the commercial centres have been constructed on the said plots. There are multi storey buildings opposite to the plot of the petitioners across the road namely Bridge Apartments having ground plus four floors with shops on the ground floor and offices and residential flats on the upper floors; Prince Complex (Plot No. F‑T 4/1) comprising two buildings adjacent to each other being eleven storey buildings with shops on the ground floor and residential units on the upper floors, P.S.O. Building on plot No. F.T. 4/3, which is under construction for which plans have been approved by respondent No. 1 for construction of eleven floors, all for commercial use with basement, Pakistan Tobacco Company Limited Building comprising of three floors. On both the sides of the plot of petitioners, there are shops, snack‑bar, restaurant beauty parlour, bank, Chapal apartments comprising eight floors with shops on the ground floor on both the sides of the plots, that is, the sides facing the main Clifton Road and the Bath Island; Hamilton Court comprising eight storeys with shops on the ground floor. There are several other such multi‑storey commercial‑cum residential buildings. It is the further case of the petitioners that in January 1987 the petitioner No. l submitted building plans for approval on which a dispute arose and ultimately the petitioner No. 1 filed Suit No.882/1987. Thereafter, in the events that happened the petitioner No.l filed Constitution Petition No. D‑893 of 1989 in this Court. This petition was allowed. Interim orders were passed in the suit. There were proceedings in this Court and the Supreme Court. The Karachi Building Control Authority sanctioned plans for constructions on the plot in question. In the plans sanctioned, a large area over which construction was permissible was left out due to misunderstanding and over‑sight. This necessitated revised plans which were submitted to respondent No. 1 vide letter dated 15‑3‑1992. All requisite documents prescribed by law, rules and regulations of respondent No. 1 were also submitted alongwith the said letter dated 15‑3‑1992. The functions under the Sindh Building Control Ordinance, 1979 were transferred to respondent No.l. It is further case of the petitioners that M/s. Orient Builders who were at one time owners of the plot, had submitted plans for approval of ground plus nine floors on the plot in question. The Commissioner, Karachi Division, stated that `N.O.C.' from Revenue Agency was not required and that Karachi Development Authority could go ahead with proceeding with the case on merits. Similarly, a letter was also addressed by Commissioner, Karachi Division to M/s. Orient Builders. The respondents did not take any action on the plans submitted to them. The petitioners, therefore, filed Constitutional Petition No. D‑1382 of 1982 in this Court. The respondent No. 2 appeared and made statement that in view of the regulations and circulars, the petitioners were entitled to raise construction leaving a space of 10 feet from the boundary wall. The respondent No.l also appeared and filed statement that in view of the stand taken by respondent No.2, the petitioners were entitled to raise construction on the area leaving only 10 feet space from the boundary wall on both sides as compulsory open space. The plans were accordingly approved for ground plus three floors only after charging a fee for additional floors. The petitioners requested respondent No. 2 to allow them to construct six additional floors. The respondent No. 2 had in their letter dated 20‑9‑1986 intimated to the petitioner No.l that Rs.30 per square yard per storey are to be charged for additional floors. The petitioners vide their letter dated 7‑2‑1989 had informed respondent No.2 that they are ready to pay additional floor charges for eight storeys at the rate of Rs. 30 per square yard for which amount comes to Rs. 10,26,840 and a challan be issued to them for the above flooring charges. The respondents have not given any, reply to the abovesaid letter. The respondents have failed to pass any order up to the filing of the above petition. In these circumstances, the petitioners have filed the above petition. The respondent No.l filed counter‑affidavit. The respondent No.l averred in the counter‑affidavit that the petitioners utilized their plot including the existing additional floors. The respondent No.l has not denied that additional floors were allowed to other persons. The averment as set out in the counter‑affidavit is that construction of this project has been existed under circulars and each case has its own merits and reasoning, relevancy at all with them. The respondent No. 2 filed statement stating therein that under Rule 23 of Sindh Local Councils (Land) Rules, 1975, the respondent No. 1 K.M.C. has discretionary powers to allow additional floors subject to such terms and conditions and on payment of such charges as may be fixed by the Council subject to clearance/NOC by the K.B.CA. Mr. Muhammad Sharif, learned counsel appearing for the petitioners vehemently urged that refusal of permission for additional floors is discriminatory and is violative of Article 25 of the Constitution. According to him, the permission for additional floors be allowed and the petitioners should get same treatment as was allowed to others. On the other hand, Mr. Muhammad Iqbal Memon, learned counsel appearing for respondent No.l, has submitted that there has not been any discriminatory treatment in not allowing additional floors to the petitioners. Mr. Muhammad Yaseen Kiyani, learned counsel for the respondent No. 2 has submitted that the respondent No.2 have no objection for allowing additional floors and have recommended the same to the respondent No.l. Mr. K.M. Nadeem, learned Assistant Advocate‑General has stated at the bar that the Sindh Government has no objection for permitting the petitioners to raise additional floors on the said plot. The principal ground urged in support of the contention is founded on Article 25 of the Constitution. The provisions of Article 25 of the Constitution have come up for discussion before the Hon'ble Supreme Court in a number of cases namely, Brig. (Retd.) F.B. Ali and another v. The State (PLD 1975 SC 506), Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan, M.NA. (PLD 1976 SC 57), Humayoon Saifullah Khan v. Federation of Pakistan through Secretary, Ministry of Justice and Parliamentary Affairs, Islamabad and 2 others (PLD 1990 SC 599), It is, therefore, not necessary to enter upon any lengthy discussion as to the meaning, scope and effect of the Article in question. The principles enunciated in the above cases have been consistently adopted and applied in IA. Sharwani and others v. Government of Pakistan through Secretary, Finance Divisions, Islamabad and others (1991 SCMR 1041) in which MrAjmal Mian J, laid down the following priciples at page 1086 as under:‑‑ "(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placid are to be treated alike; (ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; (iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings and persons accused of heinous crimes; (iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances; (v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25; (vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed; (vii) that in order to make a classification reasonable, it should be based‑‑ (a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out; (b) that the differentia must have rational nexus to the object sought to be achieved by such classification." The above principles will have to be constantly borne in mind by the Court when it is called upon to adjudge an order or statute or notification affected as discriminatory and violative of the equal protection. Rule 23 of the Sindh Local Council (Land) Rules, 1975 empowers the Council to allow construction of additional floors on the plot subject to such terms and conditions and payment of such charges as may be fixed by the Council. It has come on record that the appropriate authorities allowed additional floors on the plots mentioned in para. 12 of the memo. of petition. This fad is not denied by the respondent No.l in their counter‑affidavit. On the contrary, they themselves annexed a statement as Annexure `A' to the counter affidavit. It will be apparent that the plots including the plot in question are situated on main Clifton Road. It is well settled that equal protection of law does not envisage that every plot is to be treated alike in all circumstances, but it contemplates that plots similarly situated or similarly placed are to be treated alike. It was contended on behalf of the respondent No.l that the petitioners cannot be permitted to raise additional six floors as grant of permission is within the discretion of the respondent No.l. This contention cannot be accepted for more than one reason. Firstly, the lessors (Karachi Municipal Corporation) have no objection for allowing six additional floors. Similarly the Government of Sindh have also no objection. Secondly in a democratic set‑up like ours, the Government and the other statutory functionaries are bound to act in public matters justly, fairly and in accordance with the rules and instructions on the subject. Thirdly, it is not open to the functionaries charged with public functions to make any indivious distinction for any extraneous reasons. The discretion vested in the public functionaries must be free from arbitrariness and caprice. Article 25 of the Constitution guarantees equal protection and equal treatment to citizens similarly placed. We would, therefore, allow the above petition to the extent of declaring that denial of approval of the six additional floors on the ground that maximum utilization of plot was allowed to them, being discriminatory and violative of Article 25 and they are entitled to the same on payment of fees of Rs.80 per square yard per each floor. The respondents are directed to approve the plans submitted with the petition for the said floors. In the circumstances of the case, the parties are directed to bear their own costs. H.B.T./S‑970/K Petition allowed.