2008 PLP 493 (SCMR)

Masood Hospital (99 Garden Block, New Garden Town, Lahore) While dealing with Civil petition No.553-L of 2006, we noticed the emergence and the rapid, growth of high-rise buildings in the City of Lahore. Our concerns, amongst others, vis-a-vis, this new development were noticed by us through paragraphs 6 and 7 of our order, dated 19-7-2006 in the following terms:

"(6) The last two decades had witnessed a new culture in the city of Lahore i.e. construction of high-rise buildings comprising of shopping complexes, residential apartments and even cinema houses etc. The main Boulevard of Gulberg, for instance, which was once a purely residential area appears to have become a focus of multi-storyed commercial buildings. Each residential plot on the said main Boulevard comprised of 8 to 10 Kanals of land wherein 10 to 15 persons including the owner and the servants resided. Presently, on each such plot, multi-storyed buildings have been and are being built which are used by hundreds of persons every day i.e. the ones living there and the ones visiting the shopping arcades etc. provided therein. Needless to say that such a huge multiplicity of users of each of the said plots is likely to cause problems of immense magnitude, inter alia, matter of capacity of the road catering for the resultant traffic; the parking space for the vehicles being used by the said users; the availability of adequate water supply catering for such a large number of persons; the capacity of sewerage facilities for draining the water and the sewerage caused by such users and so on. Before the advent of this new era of multi storyed plazas, single storeyed or at the most two storeyed houses existed on the said plots which were used by the ones constructing them or the tenants inducted therein. On account of the comparatively small nature of the construction raised and the smaller number of individuals using the same, the structural stability of the said houses was never a serious issue. (7) The present situation, however, is that an investor/builder constructs a multi-storeyed high-riser; generally sells the shops and the residential apartments to the public and then disappears. The structure so raised and sold is then used, as has been mentioned above, by hundreds of people. Any weakness in such a huge structure and any lapse in the structural design or the quality control of the same could endanger not only the lives of the ones using the said building but also of those in the adjoining properties and areas besides causing threat to the said adjoining properties themselves. We went through the Building Regulations framed by the Lahore Development Authority as amended from time to time which do make some provisions for ensuring the said structural stability of such-like buildings and of the quality of construction. But during the course of proceedings, we were horrified to notice that the required supervision and the control to be carried out and exercised by the Lahore Development Authority was completely absent which was a criminal neglect of duties on the part of the concerned officials in the L.D.A."

2. We were pained to notice not only complete absence of any check or control by the Governmental Agencies e.g. the L.D.A. in ensuring structural stability of such-like buildings but also of the environmental impact caused by the same i.e. traffic and parking problems and availability of other amenities such as water and electricity etc. We were also shocked to notice that not even a single Structure Engineer was available with the L.D.A. to monitor the strength and stability of these structures. We consequently, passed orders directing the Government and the L.D.A. to take immediate remedial steps to ensure the safety of the lives of the public occupying and using such buildings and of the ones using the adjoining areas and also to ensure safety of the properties adjacent to the said buildings.

3. It is regretted that despite a lapse of almost one year nothing constructive has been done towards the said end.

4. During the course of the proceedings in the said petition, we were also informed that besides the L.D.A., the Town Nazims e.g. the Nazims of Ravi Town, Data Gunj Bakhsh Town, Allama Iqbal Town and Gulberg Town were also sanctioning construction of such-like high-rise buildings and on being summoned, we were informed by the said Town Nazims that none of the said Councils or Authorities had any qualified engineer to assess and ensure structural stability of the said buildings.

5. It was, being compelled, by the apathy of the Government and the concerned authorities and the dictates of public safety and interests that we felt called upon to intervene. Consequently, we appointed a Commission comprising of Mr. Justice (Retd.) Riaz Kiyani as its Chairman; an expert in the field of Structure Engineer to be nominated by the Vice-Chancellor of the University of Engineering and Technology at Lahore and a renowned architect, namely, Kamil Khan Mumtaz as its Members and assigned them with the task of inspecting all such high-rise buildings and to submit reports to us with respect to each such building regarding their structure stability; regarding the impact on the environment caused by them and also to find out whether such-like buildings were being constructed in conformity with all the laws and regulations governing the subject.

6. We may add here that we were appalled when the District Nazim of Lahore submitted a list of at least fifteen hundred such high-rise buildings which had been constructed or were in the process of being constructed in the city without sanctioning of the plans for the same.

7. We have been taking action on the reports submitted by the Commission as a result whereof some buildings illegally constructed had been ordered to be demolished while in one case i.e. Salar Centre, we opted to condone the illegality of addition of two extra floors on payment of Rs.50,000,000 (Rupees fifty million) as a penalty subject, of course, to the said structure being certified as stable and being in conformity of all other laws.

8. Masood Hospital is also a high-rise building comprising of three basements; one lower ground floor; one ground floor and ten floors above the ground. Masood Hospital being run in a building of Ferozpur Road and the owner wanted to raise an additional block in the same plot on an area which was initially earmarked as a parking lot for the then existing hospital. The plan was submitted on 26-1-2004 seeking sanction for construction of two basements; one lower ground floor; one ground floor and six floors above the ground. Through a letter, dated 5-4-2004 of the L.D.A. (p.11 of C.M.A. No.2053-L of 2007) the plan was sanctioned only to the extent of two basements and the lower ground floor subject to seventeen conditions/objections raised by the L.D.A. and it had been mentioned in the said letter that the sanctioning of the plan for the floors above the ground will be released after the completion of the basements up to the plinth level.

9. Allegedly on account of some soil testing report, the builder submitted a revised plan on 4-1-2005 envisaging, through the said plan, construction of three basements instead of two as originally planned; one lower ground floor and one ground floor and for construction of eight floors above the ground. Through a letter, dated 11-5-2005 the owner was informed that the matter was to be placed before the High Level Design Committee seeking its recommendation with respect to the construction of the said high-rise building.

10. Through a letter of the L.D.A. dated 4-8-2005, the owner was informed that the High Level Design Committee had "Recommended" for the approval of the said building plan but subject to satisfaction of eleven conditions mentioned therein which are reproduced below:-- "(i) That direction of movement of vehicles in the parking basements shall be clearly indicated. (ii) That the under construction retaining wall for basements required extraordinary safety precautions, quality control and workmanship for the stability and sustainability of the structure at all times. (iii) That the owner shall submit complete drawings for mechanical ventilation for basements. (iv) That the owner shall be bound to keep the service lane in front of the plot clear from all kinds of obstructions and construction materials for uninterrupted flow of traffic otherwise legal action shall be taken. (v) That the owner shall be responsible to clear the road area in front of the plot and pay any damages to the service road. (vi) That underground water storage tanks for storage of sufficient water shall be provided to facilitate charging of overhead reservoir for uninterrupted water supply even during emergency like fire fighting. (vii) That emergency fire alarms shall be provided for the building and their locations specifically shown on the plans. (viii) That adequate fire fighting arrangements in the form of water tubing for the building shall be provided and marked on the plans together with adequate number of fire extinguishers and other arrangements of fire fighting. (ix) That garbage collection point of sufficient size shall be located in the proposed building and convenient access given for daily lifting of garbage through mechanical means. (x) That adequate and convenient access to the building shall be provided to combat with any emergency situation like fire fighting. (xi) That the owner shall provide structural calculations and structure stability certificate (SSC) from a qualified Structural Engineer holding M.Sc. degree duly registered with the Pakistan Engineering Council (PEC) to the effect that: (a) The structure of the proposed building is designed by him and he is fully responsible for the stability of the structure. (b) He shall carry out proper testing of structure at crucial stages of construction and submit certificate for the stability of the structure."

11. Through an undated letter allegedly written by the Chief Executive Officer of Masood Hospital to a Deputy Director of the L.D.A., the said owner claims to have satisfied the above mentioned eleven conditions but when confronted with the same, the builder/his learned Advocate Supreme Court could not show to us how the above mentioned eleven conditions had been satisfied by the owner nor could the owner show us any architectural drawings or other drawings regarding other above mentioned objections. It was noticed that except a stamp allegedly showing receipt of the said letter in some section of the L.D.A. in September, 2005, no such letter existed on the record of the L.D.A. nor any fresh drawings allegedly accompanying the said letter were available on the L.D.A. record. We called upon the owner to show us the drawings which should be available with him and copies of which had been allegedly appended with this letter but no such drawings could be produced before us or shown to us. The learned Legal Advisor for the L.D.A., however, showed to us a plan initially submitted in the year 2004 on which some fresh lines and arrows had been marked in red and blue ink only to indicate movement of vehicles in the parking lot. In this view of the matter, we have no option but to hold that this letter was a subsequent fabrication and that the eleven conditions/objections above mentioned had never been satisfied/rectified by the owner.

12. Another striking fact available on record and that also at the instance of the owner himself who had appended a copy of a letter, dated 7-7-2005 issued by the L.D.A. (p.23 of C.M.A. No.2053-L of 2007 filed by the owner) was that on account of non-provision of shoring/safety measures and negligence of the builder of Masood Hospital severe damage had got caused to the adjoining service roads and private properties and further that the owner, had not cared even to submit a reply to the notice, dated 25-6-2005 issued to him. The L.D.A. had consequently "Suspended" the approval of the building plan even to the extent of basements as had been granted vide letter, dated 5-4-2004.

13. What is thus, available on record and not even denied by the owner is that the owner had been allowed through the above mentioned letter, dated 5-4-2004 to raise construction of the building in question only up to the plinth level; that no sanction had been given to the owner to raise any construction whatsoever above the said plinth revel; that even the said permission to raise the construction up to the plinth level had been suspended on 7-7-2005; that nothing existed on record to establish that this suspension order had ever been recalled or amended and despite this, the admitted position on the ground is that the owner had constructed three basements; a lower ground floor; a ground floor and ten floors above the ground. It may also be mentioned here that even through the above mentioned revised plan, dated 4-1-2005 the owner had sought permission to raise only eight floors above the, ground which plan, as has been mentioned above, had never been approved by the competent authority and inspite of this he had put up ten floors above the plinth level.

14. Needless to add that this entire construction had been raised illegally without seeking any permission from any quarter. A perusal of the objections raised by the High Level Design Committee regarding this building which are reproduced in para.10 above would indicate, inter alia, that the owner had not provided structural calculations and structure stability certificate from a qualified Structural Engineer in the absence of which the stability of such a huge structure was open to serious doubts; that there was nothing on record to indicate that during construction of this building any proper testing of structure at crucial stages of the construction had ever been done because no certificate was ever supplied by the owner in the said connection; that the retaining walls of the basements required extraordinary safety precautions, quality control and workmanship for the stability. and sustainability of the structure at all times but nothing was ever offered by the owner to establish any such guarantees; that adequate fire-fighting arrangements had to be made in the building and there is no proof that the same had been done; adequate and convenient access to the building had to be provided to meet any emergency situation and there is no proof that this had ever been done.

15. In such a situation, we do not find it possible for us to permit this structure to stay as in the given circumstances we can take no responsibility for the stability of the said structure and consequently of the lives of the persons using the same or persons who would at any time be available in the adjoining areas or the adjacent properties. The owner of this building has not only shown a brazen and determined disregard and contempt for the laws regulating the subject but had also displayed a callous disrespect for human lives and public properties.

16. The above-noticed report of the District Nazim of Lahore regarding at least fifteen hundred high-rise buildings having been built in the city of Lahore without seeking permission from the competent authority and in absolute violation of laws and from various reports of the Commission about other such buildings, paint a horrifying picture before us and the only questions which come to our mind are:-- (a) where is the law? (b) where are the regulatory and law enforcing agencies? And (c) where is the Government?

17. The painful answer which surfaces, tells us of a culture of lawlessness where the ones who can manage it are displaying a brazen, determined and a contemptuous disregard for all laws and a callous lack of concern for the lives and the properties of the public. Steps are, therefore, required to curb such tendencies with an iron hand if we have to survive as a civilized society.

18. Mr. Shahzad Shaukat, the learned Advocate Supreme Court for the builder placed reliance on Regulation 10 of the Buildings Regulations framed by the L.D.A. and vehemently argued that when a plan was submitted with the L.D.A. seeking its approval for the construction of a project and if such an approval was neither granted nor refused within sixty days then the builder was entitled to presume grant of such an approval and was thereafter legally entitled to construct such a project. This submission, however, looses sight of the fact that even if the said Regulation could be read for the benefit of the builder, the said benefit was available only to a structure raised in accordance with law and not to something done in violation thereof. We may add here that we have not been able to appreciate the desirability or the reasonableness of the said Regulation 10 because it was not physically and humanly possible for the L.D.A. or for any other authority to undertake the entire exercise leading to the sanctioning of a plan of such-like huge structures within two months especially when tens and hundreds of such buildings are being constructed in the city. The D.G. L.D.A., present in Court, admitted that complying with the requirement of the said Regulation 10 within the said time frame was an impossibility and the same was being used only as a dishonest instrument to commit illegalities and was a big source of corruption. He undertook to appraise the Authority of the said situation and for taking remedial measures at least in connection with high-rise buildings.

19. As has been mentioned above, we have, at least in the case. of Salar Centre, wherein two floors had been unauthorisedly added to the approved structure, withheld demolition of the said two floors by imposing a penalty of Rs.50,000,000 (Rupees fifty million) on the builder subject, of course, to all other conditions of stability of the structure etc. being satisfied. For reasons best known to the owner of Masood Hospital, no request for such a treatment had been made for the building in question. In the circumstances, we are left with no option but to direct that the said illegally constructed structure, the stability and safety of which is also not beyond serious doubts, be demolished by the L.D.A. at the risk and costs of the owner.

20. The D.G. L.D.A., present in Court, submits that steps have been initiated to make arrangements of demolition of such-like structures and prays for time to do the needful. He is allowed three months time for the purpose but in the meantime the said structure shall be sealed for safety reasons. It is further ordered that before actual demolition of the building the D.G. shall inform this Court after the requisite arrangements for the said demolition had been finalized.

21. Send a copy of this order to the Chief Secretary of the Government of Punjab for information and necessary action or at least as a wake-up call. Salar Centre (13-Babar Block, New Garden Town Lahore)

22. The builder, present in person, has brought a crossed-cheque required to be deposited by him with the Assistant Registrar of this Court and has handed over the same to him. Now let the order of this Court, dated 26-7-2007 passed in respect of the said centre (para.5) be complied with. Ahad Plaza (102-103, Garden Block, New Garden Town, Kalma Chowk, Ferozpur Road, Lahore)

23. Mr. Amir Alam Khan, the learned Advocate Supreme Court for the builder is stated to have become unwell. Re-list on 2-8-2007. 83-Garden Block (Property No.83, Garden Block, New Garden Town)

24. Mrs. Nasira Iqbal, Advocate Supreme Court prays for yet another adjournment to seek instructions in the matter. Re-list on 2-8-2007. Garden Towers (Plot No.47, Babar Block, New Garden Town, Lahore)

25. Malik Muhammad Nawaz, Advocate Supreme Court for the builder submits that whatever was required to be demolished had since been demolished with intimation thereof to the Commission. Let the Commission, inspect the premises in due course to verify this information and to submit a report. Commercial Plaza belonging to Muhammad Saleem Yasin situated at junction of Beadon Road/Cooper Road Lahore

26. Notice for 2-8-2007. Alamgir Tower (Plot No.83-D-I, Gulberg-III, Lahore)

27. Notice for 2-8-2007. Software Technology Park STP) (Plot No.15, Industrial Ferozepur Road, Lahore)

28. This is a commercial building being put up in an industrial area and that also in breach of the Building Height Rules. The learned Legal Advisor wants time to seek instructions. Big City (Plot No.3, Block-E-II, Gulberg-III, Lahore)

29. Notice for 2-8-2007. Raja Sahib (Plot No.19-A, Gulberg-III, Lahore)

30. Notice for 2-8-2007. Liberty Gate (Plot No.10-C-II, Gulberg-III, Lahore)

31. Notice for 2-8-2007. Al-Hafeez Shopping Mall (Plot Nos.82 and 82-D-I, Gulberg-III, Lahore)

32. The Commission has recommended to permit the builder to complete the building as no violation had been noticed by the Commission. China Centre (Situated at 19, Ferozepur Road, Lahore)

33. Notice for 2-8-2007. Gold Mine (Situated at 105, Ferozpur Road, Lahore)

34. Notice for 2-8-2007. M.H./F. 21/SC Order accordingly.