1999 PLP 2224 (SCMR)

NASIR ASLAM ZAHID, J.

Petitioner, Muhammad Khurshid Abbasi son of Mehrban Khan, resident of House No.124, Street No.42, F-10/4. Islamabad, has filed this petition seeking leave against the order, dated 22-4-1999 of the Lahore High Court--Rawalpindi Bench, whereby this writ petition has been dismissed. We have heard Sardar Muhammad Aslam, learned Advocate Supreme Court for the petitioner. We have, Also heard Nazim Hussain Malik, Chief Officer, Municipal Committee, Murree (respondent No.2), who has appeared pursuant to notice issued to him. He has also brought the file of the case.

2. Petitioner claims to be the owner of Plot No. 15/9 View Forth Road. Kashmir Point, Murree, measuring one Kanal and 10 Marlas. According to the petitioner, he had submitted a plan for raising a residential. building on the plot which was sanctioned and, despite obstructions by the Municipal Committee Murree, from time to time, he raised construction over the plot but then an order dated 10-10-1998 was passed by the administrator, Municipal Committee, Murree, ordering demolition of-tire f:ntife structure/building raised by the petitioner on his plot and, pending demolition, sealing of the property has also been ordered. It was further stated, on instructions, that petitioner is using the property exclusively for residential purposes and that at no time in future the property will be used as a hotel or for any commercial or non-residential purpose. The entire order of the Administrator, dated 10-10-1998 reads as follows. "Subject: ACTION UNDER SECTION 78(2) AGAINST THE ILLEGAL CONSTRUCTION ON VIEW FORTH ROAD. The abovementioned building on View Forth Road owned by Mr. Khurshid Abbasi has vide a recent inspection report No. 1646/ACM, dated 8-10-1998 found to be in gross violation of the Municipal Bye Laws and is a potential threat to the Soil Stability due to seepage and its lack of disposal and due to the possible incidence of land sliding. Specifically, the building has violated the law as in the following:

The plan was approved for 30 height having two stories including basement measuring 1/2 area of ground floor but at site the owner has construed even stories above plinth eleven stories including three stories comrl ted in. ail r cpe~t and are in function. Height of these eleven !Ilfie, framewwic is approx. 110 from plinth beam level.

2. As per provision of the bye-laws owner was allowed to cover 60 % of the total plot area but at site the covered area is more than 90%.

3. As per submitted plan only one story (i.e. ground two floor) is approved above road level whereas at site the owner has constructed two stories above road level against the building bye-laws.

4. The owner was to maintain building line 40' away from centre of road but at site at one place it is 38' whereas at the second place it is 15'. At this point under the Car Park, owner has constructed an office measuring 21'-0" x 15'-0" which is not shown in the plan.

5. Drainage have not been provided at site for the collection of seepage and rain water which is essential to protect the foundation from erosion which was advised by Soil Conservation Officer, Murree.

6. Proper sewerage system has not been provided at site as the septic tank built at site has no proper outlet into any natural drain, that is harmful for the land at down stream as it will erode the soil in the lower area. Further, while the building plan submitted was shown as residential, it has been used as hotel (Unique .Heights) or some sort of commercial enterprise completely disallowed in Station area. Several notices were served to the party including a direction to get its stability certified by the MESPAK but to no avail. Under these circumstances the owner has refused to demolish it himself leaves the Muncipal Committee with the option to act on its own. As enjoyed by the law (Section 78, Local Government Ordinance, 1979. The building, therefore, shall be demolished. Since the demolition of, thus, illegal structure and the building on the downslope, the illegal structure will entail movement and action so as to disturb the locality, the said structure and the building on the downslope, the illegal building shall be sealed forthwith for the purpose of demolition under section 78, Local Government Ordinance. Petitioner challenged the aforesaid. order of the Administrator througn a writ petition which has been dismissed by the impugned order dated 22I-4-1999 of the High Court. Paras.2, 3 and 4 of the order of the High Court referring to the contentions raised on behalf of the petitioner and the reasoning. of the High Court are reproduced here:

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2. It is the claim of the. petitioner that the building was raised strictly in acco?dance with the approved plan and if there was any deviation, the same could be compounded under Municipal Committee, Murree Bye Laws published on 29-2-1992.

3. The claim of the. petitioner was contested by the respondents submitting that the petitioner was allowed two storeys building for residential areas eras 29 ft.b . The petitioner or. The other hand has constructed at the site 11 storeys framework with approximate height of 110 ft. out of which three storeys have been completed up to an extent 71 it. length. According to the bye-laws the petitioner was required not to cover more than 60 per cent. area while at the site construction has been raised on 90 per cent. area, several other deviations were, pointed out regarding drainage and improper sewerage system. Mr. Bashir Ahmad Kiani, and Mr. Mukhtar Ahmad Chaudhry, Advocates, were also appointed as Local Commissioner for inspection of the site. The Local Commissioner submitted a rough plan which is identical to the pictures of the sight submitted in the Court on behalf of the respondents. Sardar Muhammad Aslam, Advocate representing the petitioner contended that actually residential area was in accordance with the approved plan but concrete platforms for pillars have to be constructed as the ground level of the plot was 60 ft. deep It is further contended that such violation could be compounded under the Municipal Committee Bye-laws as several other persons who have raised construction in violation of the approved plans were allowed to raise construction in contravention of the approved plan by compounding such contravention, but the petitioner was being treated discriminatly.

4. From the comparison of the approved and photographs of the building constructed by the petitioner and the plan prepared by the Local Commission, it is clear, that the building raised by the petitioner is not strictly in accordance with the approved plan. Whether the pillars and concrete platform were constructed for strengthening the building as the ground level of the plot was quite deep, it was frankly conceded by the learned counsel for the petitioner that approval of the respondents was not obtained at the time of construction of pillars and the concrete platform. Hence this Court cannot provide protection to an act, which was intentionally not performed in accordance with the Bye-laws of the Municipal Committee, Murree. Nor this Court can allow the construction for which proper approval for the concerned authorities was not obtained. If the petitioner feels that variation made in the building which was not of serious nature and the matter can be resolved by compounding such variations, on payment of compounding fee, for that purpose the petitioner shall have to approach the Municipal Authorities and in this respect any interference by this Court is not called for. The present petition is accordingly disposed of."

3. In support of the present petition, Sardar Muhammad Aslam, learned Advocate Supreme Court for the petitioner, has advanced the following contentions:

(a) Principles of natural justice have been violated by the Administrator inasmuch as the impugned order dated 10-10-1998 had been passed by the Administrator without any prior notice to the petitioner. We find no substance in this contention. Firstly, the High Court has noted in its impugned order that respondents had issued notices for demolition of the building on the ground that it was raised contrary to the building plan. Then from the file brought by the Chief Officer of the Murree Municipal Committee also it follows that prior to the impugned order, it follows that prior to the impugned order notices had been issued to the petitioner. (b) According to the petitioner, construction had been completed on the plot by the petitioner in 1996 and the petitioner was living in the premises and the action taken is mala fide and also discriminatory inasmuch as any violation of the building plans even if committed by the petitioner in respect of the property in question could be compounded under section 78 of the Punjab Local Government Ordinance, 1979, which relief had been granted to other owners/builders and reference was made to a few cases in this regard. On question from the Court, learned counsel, on instructions of the petitioner who is present, conceded that there have been certain violations of the sanctioned plans by the petitioner and he has already approached the Municipal Committee for compounding the violations. The impugned order of the High Court also shows that the petitioner had accepted some violations. From the order, dated 10-10-1998 of the Administrator it would follow that the violations of the building rules and sanctioned building plan are very serious and, if in fact, such violations have taken place, and the same are compounded it would' make a mockery of the building rules and status of the sanctioned plan. If all violations of building rules and sanctioned building plans can be compounded, there would hardly be any necessity of having such rules or requiring sanction of a building plan.. Power given to the concerned authority for compounding to such cases is for the purpose of dealing with very minor violations and such power cannot be exercised for defeating the very purpose of framing building rules/regulations and precondition of having building plans sanctioned. The apparent argument that construction can consciously be raised in violation of building plans and/or building rules and then the violations can be compounded is fallacious. Learned counsel has referred to discriminatory treatment meted out to the petitioner by citing cases of other owners/builders in Murree. Extending on undue or illegal benefit to another owner/builder would not confer any right on the petitioner to claim the same relief from the concerned authority. The Municipal Committee/Administrator may, however, look into other cases and wherever it is found that improper or illegal condonation has been extended, requisite action permissible under the law may be initiated. (c) Learned counsel has referred to the report of the Local Commission. This has been dealt with by the High Court in its impugned order. Additionally, it may be observed that Chief Officer of Municipal Committee, Murree, has produced a photograph of the building constructed by the petitioner. Sardar Muhammad Aslam, on instructions of the petitioner who is present, accepts that the photograph produced by the Chief Officer is of petitioner's building. The photograph is placed on record. From the sanctioned plan which has been brought by the Chief Officer and the photograph produced by hire and also from the statement made by learned counsel for the petitioner, on instructions' of the petitioner, it is apparent that building has not been raised in accordance with the building rules and the sanctioned plan. (d) Learned counsel has also raised objection about the direction of the Administrator in his order, dated 10-10-1998 that there is no provision for sealing the premises where demolition is ordered under section 78 of the 1979 Ordinance. We find no illegality in the direction for sealing the building as it was considered necessary by the Administrator for the following reasons given in his order:

"Under these circumstances, where the owner has refused to demolish it himself leaves the Municipal Committee with the option to act on its own as enjoined by the law (section 78, Local Government Ordinance, 1979. The building, therefore, shall be demolished. Since the demolition of, thus, illegal structure will entail movement and action so as not to disturb the locality, the said structure and the building on the downslope, the illegal building shall be sealed forthwith for the purpose of demolition under section 78, Local Government Ordinance. " However, before demolition, respondents will allow the petitioner to remove all his articles, furniture and fittings,

4. No case is made out for interference with the impugned order of the High Court. If any application has been made by the petitioner to t Municipal Committee/Administrator, the same shall be disposed of in accordance with law without any delay. Civil Petition No. 1029 of 1999 is dismissed and leave is refused. M.B.A./M-351/S Petition dismissed.