2000 PLP 2940 (YLR)

(i) In compliance of the Court order the premises was sealed through official assignee on dated 7‑1‑1999.

1. REGULARIZATION PLAN SUBMITTED BY THE OWNER: (i) In the mean time the owner submitted the regularization plan on 9‑1‑1999. (ii) As per resolution, dated 8‑9‑1999 passed by the Oversee Committee in the (22+) 7th meeting relevant portion is as under:‑‑‑ "ON THE PROPOSAL OF SHEHRI, IT WAS RESOLVED THAT IN THE CASES WHERE DEVIATION FROM THE APPROVED PLAN HAVE BEEN COMMITTED IN SUCH A WAY THAT IF THE VIOLATIONS ARE WITHIN RULE AND REGULATIONS IN SUCH CASES REGULARIZATION SHALL BE ALLOWED." (Photocopies are attached) (Annexure "B"). (iii) "It was further resolved that on KB and TP regulation Part I and Part 2 shall be followed in letter and spirit and nothing else including previous notifications/order/long standing practices, etc. if any." (Photo copy attached) (Annexure "C"). (iv) That vide KB & TP Regulation No. 16 as under:‑‑‑ (c) "compound the offence after realization of composition fee on the merits of the case, provided that no offence shall be compounded if: (i) The building (Photo copy attached) (Annexure "D").

5. REGULATION PLAN APPROVED BY KBCA/KDA: (i) The total covered area was well within the allowable plot ratio. The regularization plan was considered and approval was accorded as per rules and regulations for B+ G+ 3 upper floor on 26‑10‑1999 vide Letter No. KBCA/KDA/DCB‑XIX/ 5/ 1 / 19/77, dated 26‑10‑1999. (Photo copy attached (Annexure "E"). After realizing the Composition Fee of Rs.2,22,100 (Two Lac twenty‑two thousand one hundred only). (Photo copy attached) (Anenxure"F"). (ii) It is clarified that the building in question is within the height in the vicinity of Quaid‑e‑Azam Mausoleum.

6. PRESENT POSITION OF THE SITE: (i) After the demolition action and regularization building plan is/no any violation at the site. (ii) Building sealed from 7‑1‑1999. (iii) B + G +3 upper floor complete and unoccupied. The statement, dated 9‑2‑2000 Controller of Buildings Circle ' D' , KBCA runs:‑‑‑ The building plan was approved for B + G + Three uppers on plot Nd‑220 JM, Jam‑shed Quarters, KAR. (2) The builder deviated from the approved plan in respect o1 compulsory open spaces, details o1 deviations are as under: (i) Balconies projections (ii) Bath rooms, projections (3) The said deviations have been removed by the KBCA. (4) The minor deviations of the approved building plan such as utilization of excess of the building which has been regularised as per rules, by the competent authorities of KBCA. (5) The co‑owner of plot. Mr. Saleem Ahmed has submitted the undertaking, dated 14‑12‑1999, regarding. violations and ,assurance that he will not raise construction against the approved plan. The photostat copy of said undertaking is attached. (6) Now, there is no violation/deviation of the approved plan." The above statement is also accompanied by an undertaking of respondent Saleem Ahmad wherein he has stated that whatever violations were found on Plot No.220, Jamshed Quarters, Karachi, have already been removed by KBCA and present structure was absolutely according to approved plan end no further construction would be caused against the approved plan. The petitioner as per his comments, dated 15‑2‑2000 to the statement of Controller of Buildings, KBCA, ‑has stated that the builder has deviated from original and revised approved plans and the alleged minor deviation could not be regularised and the covered area was in excess than permissible bye‑laws and that the construction was in violation of lease conditions. We have heard the learned counsel for the parties and perused the affidavits, counter‑affidavits, affidavits‑in‑rejoinders, annexures, reports and comments filed by the respective functionaries. Learned counsel for the petitioner has submitted that the violations in raising the building cannot be regularised and the terms and conditions of the lease could not be varied in absence of registered document by the lessor. He ‑ further submitted that the compulsory open space has not been left as provided by regulations. He has placed reliance upon (i) Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others (1999 SCMR 2883) and (ii) Muhammad Khurshid Abbasi v. Administrator/Assistant Commissioner, Municipal Committee, Murree and another (1999 SCMR 2224). Learned counsel for respondents Nos.6 to 9 has submitted that petitioner had initially two grievances (i) that the building exceeded the level of Quaid‑e‑Azam's Mazar podium and (ii)‑that the respondents Nos. 6 to 9 have got approved building plan for basement plus ground plus three floors only but thereafter the petitioner has raised other pleas as well. He further submitted that excess covered areas has been regularised and has referred to Regulation No. 16, page 15 of Building Regulation Part‑1, page 107(m) of Schedule 'A' of Town Building Regulations, Part 11 where relaxation in compulsory open space could be considered on technical grounds and has also referred to page 114 of Schedule 'E' of Town Building Regulations, Part Il. He has also placed reliance upon the plot ratio standard mentioned at page 92 of Town Building Regulation, Part II. Learned counsel for respondent No. I has referred to the statement of the Controller of Buildings, dated 9‑2‑2000 at pages 397 to 399 of the petitioner and undertaking of respondent No.6 Saleem Ahmad at page 401 and has also referred to schedule of the area as per building plan shown at page 383, Annexure 'C' showing the total area of the plot 1190.00 sq. yds. or 10710.00 sq. ft. and total covered area of ground floor as 4675.42 sq. ft., first floor 4675.42 sq. ft., second floor 4675.42 sq. ft. and third floor 4675.42 sq. ft. He has also referred to Abdul Razak v. Karachi Buildings Control Authority, and others (PLD 1994 SC 512). Learned counsel for respondent NO.1 has submitted that no relief has been claimed against the KDA/respondent No.2. The contentions of learned counsel for the petitioner are (i) that respondents Nos.6 to 9 are raising unauthorised construction on Plot No.JM 220 on the basis of illegally approved building plan for basement plus ground floor plus three floors, (ii) that the height of the building was above A that of podium level of Quaid‑e‑Azam's Mazar viz. 91 feet above mean sea level, (iii) that right to light and air would be disturbed, (iv) that raising of building would also create nuisance and (v) that no compulsory minimum open spaces on all sides of built‑up area has been left. So far the contention about raising of unauthorised construction over the said plot, the respondent No.6 Saleem Ahmad in his counter‑affidavit has denied that any unauthorised construction was being raised over the plot in question. Nazir under the orders of this Court inspected the site on 3‑12‑1998 in presence of the parties and their representatives submitted inspection report reproduced above showing the construction on the basement, ground floor, first floor to third floor and roof. The respondent No.l/KBCA filed comments on 18‑12‑1998, stating therein that building plan was approved for basement plus ground plus three floors on 3‑10‑1997 on the basis of Town Planning NOC and when it was found that construction was being raised in violation of approved plan and at the initial stage action for demolition was taken on 13‑12‑1997, thereafter the owner obtained revised approval for basement plus ground plus three upper floors on the basis of Town Planning NOC on 11‑2‑1998 wherein it was stated that construction raised was according to approved compulsory open space and the structure on the said plot would not effect any neighbour and only front road side compulsory open space was found in violation which was removed. Again on 23‑12‑1998 Official Assignee sealed the building under orders of this Court who reported that the building from ground floor up to third floor was raised and on the fourth floor of the building columns were erected and there was partial shuttering on the roof of third floor and front elevation of the building was found damaged by the local authorities. On 29‑9‑1999 Deputy Controller of Building Zone XIX, KBCA submitted his report that approval of suit property was accorded for basement plus ground and three upper floors having car parking on the basement and residential floors and that compulsory open space on the front side was 10 feet while on other three sides 5 feet and the violation against the approved plan with respect to excess covered area viz., compulsory open space was removed. It was also stated that construction so far raised was within the allowable plot ratio. Controller of Buildings as per his report, dated 3‑12‑1999 has submitted that approval was accorded for basement plus ground plus three upper floors within plot of 1.75 covered area on each 41oor having basement for car parking and ground plus three upper floors for residential apartments vide, approval, dated 13‑10‑1997. on the basis of Town Planning NOC with the compulsory open space front side 15 feet and all other sides 5 feet and thereafter revised approval was accorded for basement plus ground plus three upper floors within plot ratio of 1:1.7$‑ on the basis of Town Planning NOC, dated 11‑2‑1998 with compulsory‑open space 'front side 10 feet and all other sides five feet. It was stated that construction raised in compulsory open space in violation of approved plan was demolished with the help of District Administration. It was also stated that regularization plan was approved by KBCA and the total covered area was well within the allowable plot ratio and such approval was accorded on 26‑10‑1999 after realization of composition fee and after demolition action and regularization of building plan, there was no violation of the approved plan at the site. The Controller of Buildings, Circle 'D'. KBCA, in his statement, dated 9‑2‑2000 stated that deviations in respect of balconies projections and bath rooms projections have been removed by KBCA and the minor deviations of approved building plan such as utilization of excess of the building has been regularised as per .rules by the competent authority of KBCA and the co‑owner has given undertaking on 14‑12‑1999 that he would not raise any construction against the approved plan and there was no violation or deviation of the approved plan. So far the contention that the height‑ of building was above the podium level of Quaid‑e‑Azam's Mazar, it was stated that the building in question was less than the podium level of Quaid‑e‑Azam's Mazar. The respondent No.l KBCA in their counter‑affidavit and comments have specifically stated that whatever contrary to the provisions of KBCA Regulations was done by respondents Nos.6 to 9, same has been demolished and removed and whatever minor deviations were there, the same have been regularised after realization of composition fee. The petitioner's learned counsel has not shown specifically that there were violations in the building plan in respect of any sanctioned site development scheme or the construction so raised would obstruct any future road widening scheme or that the height and number of stories exceeded permissible limit under the regulations or the building extended beyond the property limits or the building work violated fire or any other safety requirement or that NOC from Master Plan and Environment Control Department was not obtained. for the purpose of regulations of the deviations so regularised. Nothing has been pointed out that the KBCA has regularised the said minor deviations or regularised the compulsory open space in excess of their authority. The learned counsel for the petitioner has not pointed out that the regularization has . been made in breach of the regulations which would change the complexion or character of the structure which was originally intended to be erected on the said plot. So far the contention with regard to the diminution to light and air, nothing has been brought on record by the petitioner th e in case said construction as approved by KBCA in favour of respondents Nos. 6 to 9 is raised light and air would be diminished. In absence of such material on record, it cannot be said that the construction so raised in respect of building would disturb the rights of the petitioner in respect of right to light and air. So far. the contention of the learned counsel for the petitioner that raising of the building would create nuisance, no material/evidence has been brought on record to say that the raising of the said building would be a nuisance to the petitioner. The learned counsel for the petitioner could not point out from the reliable material on record that the final approved building plan was in contravention of Rules and Regulations of KBCA. So far the case Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others (1999 SCMR 2883), the facts of the cited case are different and distinguishable to the facts of instant case, considering that, the cited case was in respect of amenity plot meant for construction of revolving restaurant, as an attraction for the visitors which plot was carved out from the land reserved for the Bagh‑e‑Ibne Qasim whereupon high‑rise building i.e., commercial‑cum‑residential building admeasuring 4851.61 sq. yds. was to be raised. Their Lordships in the cited case in para.18 of the said judgment observed:‑‑‑ "A high‑rise building constructed on residential plot cannot be equated that of high‑rise building constructed on a portion of park land carved out for revolving restaurant which has direct nexus with the objects of the park." The facts of case Muhammad Khurshid Abbasi (1999 SCMR 2224) are quite different and distinguishable to the facts of instant case, considering that the said building was raised in gross violation of Municipal Bye‑Laws which was potential threat to the Soil Stability due to seepage and its lack of disposal and due to the possible incidence of land sliding when the residential building was sanctioned whereas the owner constructed eleven stories above the plinth level and further the owner was to maintain building line 40" away from the centre of road instead of that at site it was 38" and at second place it was 15" and no drainage and sewerage system were provided and the violations made were held not to be compoundable. . In view of above material and reasonings on record we do not find substance and merit in the contentions of learned counsel for the petitioner consequently the petition is dismissed in limine alongwith the listed applications. However in case if it is found by KBC,.A before issuance of completion certificate of the building in question that there were violations to the approved building plan or were against the regulations and rules of KBCA, the said respondent‑KBCA would be at liberty to take action against the respondents Nos.6 to 9 in respect of building in question. H.B.T./H‑18/K Petition dismissed: