2008 PLP 468 (SCMR)

KHALIL-UR-REHMAN RAMDAY, J.

Claiming to be the owners of a House bearing No.19-K of Block "B" of Gulberg-II, Lahore, the petitioners filed a suit in the Court of the learned Senior Civil Judge at Lahore alleging that Pervaiz Hussain respondent who was the owner of the adjacent Property bearing No.11-K of Gulberg had started constructing a multi-storeyed shopping-cum-residential plaza at the said site under the name of "Boulevard Heights"; that the excavation done by the said respondent in the plot in question had led to a severe lateral movement of the ground under the petitioner's house towards the excavated site which had caused cracks and the consequent serious damage to the petitioners' said property; that the said respondent No.6 had started the said construction without any legal and bona fide sanction for the said purpose; that the piles constructed by the said respondent in the excavated site were faulty as the same did not offer the requisite retaining strength which could resist the lateral soil pressure of the ground underneath the petitioner's house and that the said multi-storeyed plaza was being constructed also in violation of the mandatory provisions of Regulations Nos.9(iii), 9(iv), 42, 66(d)(iv) and 81 of the Building Regulations of the Lahore Development Authority as also in violation of the provisions of section 12 of the Pakistan Environmental Protection Act of 1997. It had been consequently prayed, inter alia, that it be declared that the sanctioning of the said building's plan was collusive and illegal and that the excavation in the plot in question was in serious violation of law and was a serious threat to the lives and the property of the petitioners and of others. A permanent injunction was consequently, sought restraining the said respondent from undertaking any further excavation and construction at the site in question and a decree was also prayed directing the said respondent to pay damages to the petitioners in the sum of Rs.109,000,

000. Along with the said suit the petitioner had also filed an application for the grant of a temporary injunction in the above mentioned terms.

2. Through an order, dated 28-11-2005, the learned trial Judge refused to order stoppage of the construction in question at the said site but directed the respondent builder and the respondent-L.D.A. to ensure protection of the property and the lives of the petitioners. Feeling dissatisfied with the said order, the petitioners approached the Lahore High Court through F.A.O. No.324 of 2005 which appeal was dismissed through the impugned order, dated 17-2-2006.

3. Hence this petition.

4. We have heard the learned Advocate Supreme Court for the petitioners at some length. We have also had the benefit of the assistance from the learned Advocate Supreme Court for the L.D.A. as also of the learned Advocate Supreme Court representing the builder i.e. respondent No.6.

5. The site in question where the said commercial building is being constructed adjoins the house of the petitioners on one side and the main Boulevard of Gulberg Lahore, on the other. The plan of the builder is to construct 17 storeys above the ground comprising shopping arcades and residential apartments etc. 'and to cater for the parking requirements of the occupants and of the users of the said building, he also intended to construct four underground basements as parking lots. This necessitated digging at the site in question upto around 50 feet below the ground level. The builder claims to have taken steps i.e. construction of piles etc, to provide support to the adjoining areas on all sides despite which, it is not denied that some damage had got caused to the property of the petitioners. It is also a fact admitted on all sides that the L.D.A. had sanctioned the building plan of the building in question but only upto the ground level in the first instance though it is alleged by the petitioners that the said sanction was collusive and illegal.

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-storeyed 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-storeyed 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, in the matter of capacity of the roads 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-storeyed 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.

8. The provisions of Pakistan Environmental Protection Act of 1997 demand environment impact assessment of each such project before any plan for the construction of the same could be sanctioned. The L.D.A. Authorities seem never to have complied with the said provisions. Regulations Nos.66 and 81 of the above mentioned Regulations envisage soil investigation of the site where a multi-storeyed building was to be raised to find out whether the soil could take the load intended to be caused on the same. There is no evidence before us that the L.D.A. Authority ever demanded any such investigation before sanctioning the building plan of any such high-rise structure. The builder of any building comprising three storeys or more was required to employ a Structure Engineer to do the structural design for such a building to ensure stability of the same as per Regulation No.9(iv) and such Structure Engineer was not only required to certify the stability of such a structure but also to personally visit the same at various stages of the construction and to certify that the construction was being raised to his satisfaction and in accordance with the design. This was the requirement of Regulation 14(iv) of the said Regulations. As per Regulation No.42, any excavation more than 14 feet deep was required to be inspected by the Building Inspector of the L.D.A. at least once a week in addition to which he was also required to carry out an inspection whenever there was a change in weather conditions.

9. We were surprised to find that the L.D.A. never cared to ensure compliance of any such mandatory requirements.

10. So far as the building in question is concerned, it was the case of the respondent owner that the plan submitted by him to the L.D.A. had been sanctioned upto the plinth level; that he was thus, not carrying out any construction without a sanctioned building plan; that Dr. Zia-ud-Din Mian had been engaged by him as the Structure Engineer who had done structural designing of the said building and had certified its stability; that after the said Dr. Zia-ud-Din Mian had disassociated himself from the said project, he had hired Dr. Javed Younis Upal as the Structure Engineer who had also certified the structural stability of the construction being done at the site; that all possible steps had been taken by him to ensure that no damage at all was caused to any of the adjoining properties and that if any such damage had, however, got caused then he was willing to compensate the affected persons for the same; that he was the only builder who had provided four basements to cater for the parking of the vehicles of the persons likely to use the said building and finally that he had committed no illegality in the construction of the building in question and that in future also, he would continue to abide by all the laws regulating the subject.

11. As has been noticed above, the matter in hand does not remain confined only to the building in question being raised by respondent No.6 and is in fact a matter which concerns the public-at-large and all the multi-storeyed buildings being constructed at least in the city of Lahore. On our call, the L.D.A. has submitted a tentative list of more than one hundred buildings comprising of three storeys and more which were being constructed in various parts of the city of Lahore including the areas in the old city like Shah Alam Gate etc. This list submitted by the L.D.A. is, however, not exhaustive or conclusive and the number of such buildings could be much more.

12. The situation is alarming. Such a large number of multi-storeyed high-rise buildings are being constructed all over the city without ensuring compliance of security measures; proper supervision and adherence to the law regulating the subject and the same are thus, a serious hazard to the safety of the people and the properties. Since the Authority obliged to take steps in the matter has failed to do so, therefore, we feel compelled to take appropriate steps in the larger interest of the public who have a constitutional right to the protection of their lives and properties.

13. Another dimension of this problem which struck us was that, as has been mentioned above, investors/builders of such-like buildings raise the construction; sell the shops and residential apartments etc. to the public and then leave the arena. More than one serious questions, therefore, arise. The first question is as to what is it which each one of the hundreds of persons who purchase shops and flats etc. in such-like buildings, own? And in case, God forbid, any such building gets destroyed through some accident or Act of God, then what is it that each individual who had spent lacs of rupees to own some such shops or flats in this building, is left with? The second question is how was such a huge structure and various expensive equipments and facilities which were common to all the users to be maintained e.g. the air-conditioning plant, the electricity supply, the elevators, the common passages etc?

14. Having considered all aspects of the matter and having heard all concerned, we direct as under:-- (1) So far as the issue of the building in question i.e. "Boulevard Heights" is concerned, it is ordered with the consent of all the parties that; (a) till further orders respondent No.6 shall not raise any construction beyond the plinth level but upto the said level, he will be at liberty to continue with the construction; (b) with the consent of the parties and at their initiation, Messrs Mushtaq and Bilal, Consulting Engineers with their office at 302 Noor Estate, Shahrah Faisal, Karachi are appointed as a commission who shall carry out a study of the project in question and then submit a report about the structural stability of the said building; about the quality control thereof and the material used therein; about the effectiveness of the strength of the retaining walls and concrete structure in the basement and to assess the damage, if any, caused to the property of the petitioner located at 19-B Gulberg-II i.e. adjacent to the building in question and also to identify the causes leading to the said damage."

15. The L.D.A. is directed to carry out a similar exercise with respect to the other multi-storeyed buildings being constructed in the city by hiring some duly qualified consultants who would also submit their report with respect to each of the said buildings including a report whether the same were being constructed in compliance with all the rules and regulations governing the subject including the compliance of the provisions of the Pakistan Environmental Protection Act of 1997.

16. We are surprised when we are told that no Structure Engineer is available in the L.D.A. and that the construction of such-like high-rise buildings was going on in the city in the absence of any such engineer being available with the regulatory body and the supervisory authority i.e. the L.D.A. The L.D.A. is directed to take immediate steps for the recruitment of Structure Engineers at all levels in the Authority through the Public Service Commission and till the said recruitment is finalized, they shall be at liberty to employ any duly qualified person for the purpose who shall carry out periodical inspections of the buildings in question in accordance with law.

17. The competent authority is also directed to take disciplinary action against the' Chief 'Metropolitan Planner of the L.D.A., the Director Incharge of Town Planning in the L.D.A., the Director, TIPA in the L.D.A., the Deputy Director (D.P.), the Assistant Director (D.P.) and the Building Inspectors etc. who were obliged to ensure compliance of all laws in the matter of sanctioning of the building plans and ensuring the structural stability of the building in question and of other similar buildings and who had failed to do the same. Report of the action taken by the competent authority shall be submitted to this Court on the next date of hearing.

18. The Government of Punjab shall immediately consider initiation of steps for making laws regarding multiple ownership i.e. protection of the interests of the owners and occupants of such-like high-rise buildings including the steps for providing an insurance cover for the said owners and the steps for maintenance of common facilities therein. The Zila Nazim of Lahore and the Director-General of L.D.A. shall also submit a report whether they had taken any steps to equip themselves to meet any emergent situations vis-a-vis such-like buildings in case of any fire or some such other accident or calamity afflicting the same.

19. This petition shall now be set down for further hearing after summer vacations either at Lahore or at Islamabad according to the availability of the Bench. M.H./F-19/SC Order accordingly.