The Constitution of Pakistan, 1973 Developed by Zain Sheikh

COSTA LAVINA CASE
Per Ajmal Mian, C.J.

(a) Constitution of Pakistan Articles 199, 9 & 25
r/w Karachi Development Authority Order (5 of 1957)—Art. 52-A— and Karachi Building and Town Planning Regulations, 1979—

The above appeal was disposed of by a short order dated 3-5-1999 for the reasons to be recorded later on. We intend to record the same.

The above appeal has been filed with the leave of this Court against the judgment dated 25-5-1995 of a learned Division Bench of the High Court of Sindh, Karachi in Constitution Petition No. E-3501 of 1993, filed inter alia by the present appellants, challenging the order dated 9-3-1991 or respondent No. 3 allowing the construction of a high-rise building i.e. commercial-cum-residential building on a plot of land, measuring 4851.61 sq. yards, bearing No. ST-15, Block-3, Scheme No. 5, Karachi (hereinafter referred to as the Plot), carved out in 1976 from the land, measuring 132 acres, earmarked for construction of Bagh-e-Ibne-Qasim, situated near Jehangir Kotri Parade, Clifton, Karachi facing the Arabian Sea (hereinafter referred to as the Park), dismissing the same.

The brief facts are that the Karachi Improvement Trust, which was incorporated under the Karachi Improvement Trust Act, 1950, framed a housing scheme, in which it earmarked the aforesaid land, measuring 132 acres for the Park under the aforesaid name of Bagh-e-Ibne Qasim, which was duly gazetted on 23-3-1956. Subsequently, upon formation of Karachi Development Authority (K.D.A.) under the Karachi Development Authority Order of 1957 (hereinafter referred to as the Order), the erstwhile Government of West Pakistan again notified the above scheme as Karachi Development Scheme No. 5 and gazetted the same on 30-10-1964. After that the Government issued direction of the development and encouragement of relational facilities. As regards the Park, it was specifically stated that the main part in the above area of 132 acres was to be provided with amusement parks, recreational facilities, restaurants, refreshment stalls, ponds, sea-shall shops, swimming pools, Lily ponds, rocky garden, formal garden, antique shops, fountains, telescope corner, picnic spots, band stand, skating rink, terrace garden etc. On 1-4-1976 the land for the Park was revised, whereby the Plot was carved out and was reserved for a revolving restaurant only. It seems that on 19-7-1976 the Plot was allotted in favour of M/s Marvi Investments. It also seems that after the expiry of nearly 24 years an allotment letter in favour of M/s Marvi Investments was issued on 8-4-1990. The latter after the expiry of about five weeks on 12-5-1990 transferred the Plot in favour of respondent No. 5, namely, M/s Pearl Builders (Private) Limited.

The questions whether the appellants had locus standi to file the above Constitution Petition and whether the same suffered from laches, depend on the fact, whether the Plot was part of a public park and, whether factually the Plot was carved out from the land of the park for the use of commercial purpose, which is understood in the ordinary parlance. It may again be stated that land, measuring 132 acres, was earmarked for the Park even under the scheme framed under the Karachi Improvement Trust Act, 1950, which was duly gazetted on 23-3-1956. Upon the formation of the Karachi Development Authority (K.D.A.) under the Order, the erstwhile Government of West Pakistan again notified the aforesaid Karachi Development Authority (K.D.A.) under the Order, the erstwhile Government of West Pakistan again notified the aforesaid Karachi Development Scheme No. 5 [hereinafter referred to as the K.D.A. Scheme No. 5 (Clifton)] and gazetted the same on 13-10-1964. The above land measuring 132 acres was again reserved for the Park. This fact has not even been disputed by Mr. Farooq H. Naik, learned counsel for respondent No. 5 in view of overwhelming relevant documents on record. The Minister for Housing, Town Planning, and Local Government, Government of Sindh launched brochure of the above K.D.A. Scheme No. 5 under the direction of the then President of Pakistan, Mr. Zulfiqar Ali Bhutto, through his forwarding letter dated 27-2-1973 (at page 85 of the paper book). Para. 7 of the brochure deals with the Park, which reads as follows:—

The Main Park in an area of 132 acres, named as Bagh-e-Ibne Qasim, has been provided with amusement parks, recreational facilities, Restaurants, Refreshment stalls, Ponds, sea-shall shops, Swimming Pools, Lily Ponds, Recky Garden, Formal Garden, Antique shops, Fountains, Telescope Corner, Picnic spots, Band Stand, Skating rink, Terrace Garden etc.”

The abovequoted para. 7 of the brochure indicates that the main park envisaged for K.D.A. Scheme No. 5 was the park under reference. The above para. 7 provides that the park named as Bagh-e-Ibne Qasim on 132 acres was to have amusement park recreational facilities, restaurants, refreshment stalls, ponds, sea-shall shops, swimming pools, Lily ponds, rocky garden, formal garden, antique shops, fountains, telescope corner, picnic sports, band stand, skating rink, terrace garden etc. already been referred to hereinabove in para. 2, while narrating the facts. Keeping in view that the Park was to have inter alia restaurants carving out a piece of land, measuring 4851.61 sq. yards for a revolving restaurant out of the above area of 131 acres of the Park was in fact in furtherance of the scheme of the Park and not for conversion of the same for commercial purposes. Respondent No. 5 has not produced the allotment letter dated 19-7-1976 in favour of M/s Marvi Investments from whom it had purchased the Plot, but in para. 1 of the impugned order dated 9-3-1991 of the Additional Chief Secretary, Government of Sindh, Housing and Town Planning, Local Government and Rural Development Department the purpose for which allotment was made has been stated, as under:—

“The present appeal is concerned with Plot No. st-15, Block 3, Scheme 5, Karachi. This plot was designated a ‘ST’ type of plot and was originally intended for the construction of the revolving restaurant, similar in nature to the London Post Office Tower. The plot had been originally allotted for this purpose to M/s Marvi Investment, but no construction was initiated thereon. The plot was then acquired by the Appellant.”

Even in the allotment letter dated 8-4-1990 (at page 127 of the paper book) though the plot has been described as Commercial Plot No. ST-15, but the purpose for which it was allotted has been clarified by stating “revolving restaurant” in the bracket after the number.

Even if we were to accept Mr. Farooq H. Naik’s contention that factually the Plot was commercialised, it will not improve the case of respondent No. 5, because of Articles 40 and 52-A of the Order and para. 3 of Schedule ‘D’ to the Regulations. It may be observed that clause (4) of Article 40 of the Order provides that if any person desires to use any land for any purpose other than that laid down in the Zonal Plan Scheme notified under clause (3), he may apply to the Authority for permission to do so and the Authority may order a public hearing and give notice to all persons it deems affected. Whereas Article 52-A deals with the framing of the housing scheme which is to include hospitals, schools, colleges, libraries, play-grounds, gardens, parks, community centres, mosques, graveyards. Its clause (2) envisaged that the Authority or the Housing Society may at any time prior to utilisation of any plot reserved for the purpose mentioned in subsection (1), apply to the Commissioner for conversion of such plot any other purpose. Clause (3) thereof lays down that on receipt of an application under subsection (2), the Commissioner shall invite objections from the general public through a notice published in one English and one vernacular leading daily newspaper and the objections, if any, shall be submitted to the Commissioner within 30 days from the date of the publication of the notice. Whereas clause (4) provides that the Commissioner shall after considering the objections received under subsection (3) and hearing such persons as he may consider necessary, forward his recommendations alongwith the application and other connected papers to Government for orders. It may also be observed that para. 3 of Schedule ‘D’ to Regulations prohibits the change of land use or conversion of amenity, utility and other plots without following the procedure contained therein which envisages inviting of public objections through the newspapers as above and hearing of the objections. The Regulations have been held by this Court to have statutory force in the case of Multiline Associates v. Ardeshir Cowsjee and others (supra). Reference may also be made to the judgment of this Court in the case of Abdul Razak v. Karachi Building Control Authority (supra), in which this Court with reference to above Article 52-A of the Order has observed that “We may point out that even under the Order, the K.D.A. is not authorised to change the use of any amenity plot without inviting objections and without obtaining the order of the Government”.

Admittedly, no objections were invited in terms of the above provisions of the Order and the Regulations and, therefore, per se the alleged conversion of the plot for commercial purpose is illegal and contrary to the layout plan of the K.D.A. Scheme No. 5. The above illegality could not have been rectified by order dated 9-3-1991 when respondent No. 5’s first building plan was approved or by second order dated 24-6-1992, when the revised plan was accorded approval. It may be observed that omission on the part of the appellants to assail the latter order in Constitution Petition referred to by the learned Division Bench in the judgment under appeal is of no consequence as the High Court was to decide order issue, namely, whether the approval of the plan for a high-rise building on the plot was legal or not.

It may be pertinent to refer to respondent No. 5’s letter dated 7-6-1992, whereby it submitted revised plan which indicates the type of construction which it intended to raise on the plot.

The perusal of respondent No. 5’s letter indicates that total covered area proposed was 261659.26 sq. ft., out of which 2827.35 sq. ft. is intended to be used for revolving restaurant and 3871.35. ft. for the Mechanical Room for the proposed revolving restaurant. Thus, the total area intended to be used for revolving restaurant is only 6698.70 sq. ft. In other words, though the plot was carved out for a revolving restaurant, respondent No. 5 intends to use about 2.56% of the proposed construction for revolving restaurant. In other words, the object for which the Plot was carved out from the Park land, measuring 132 acres is patently defeated. In this behalf reference may be made to the Director-General’s note dated 25-6-1992 on respondent No. 5’s application for approval of the revised plan, referred to hereinabove in par. 4, wherein he pointed out that only a towner with revolving restaurant was permissible and there would be criticism from public and definitely there would be Court case in respect of the Plot on account of the approval of the revised plan. The sub-Committee constituted to examine the high-rise buildings comprising technical experts/public representatives opposed (except the representatives of ABAD) the construction of high-rise building on the Plot on the ground that the Plot was allotted for a revolving restaurant and the original scheme envisaged that whole of the sea front of Bagh-e-Ibne Qasim would be free of any obstruction/structure/building for providing a clear view of the sea. In spite of the above legal position and opposition respondent No. 5 managed to obtain the approval from the then Chief Minister of Sindh which is evident from appellant No. 1’s letter dated 18-8-1993 quoted hereinabove in para. 5. [pp. 2898 to 2902] A

(b) Constitution of Pakistan (1973), Article 199
r/w Karachi Development Authority Order (5 of 1957)—Art. 52-A—and
Karachi Building and Town Planning Regulations, 1979, Sched. D, para. 3

We are, therefore, of the view that factually the plot was not carved out for commercial use for raising a high-rise building, but it was intended to be used for a revolving restaurant as an attraction for the visitors to the Park. In this view of the matter, respondent No. 5 neither on factual plane nor on legal basis, can raise a high-rise building to be used for commercial-cum-residential purpose.

Adverting to the question of locus standi of the appellants, we may observe that the Clifton beach is a place in Karachi, which is not only visited by the Karachi cities, but generally people who are on short visit either from other parts of the country or from abroad also visit Clifton beach as it is a well-established place of public recreation since before the partition of India. The title of the memo. of appeal indicates that most of the appellants reside in close proximity of the Park and, therefore, it cannot be urged that they have no locus standi to file the above Constitution petition. In our view, because of the location of the Park as highlighted hereinabove even a resident of a distant area like Lyari Quarters could have filed the above Constitution Petition. In this regard, reference may be made to para. 15 of the judgment in the case of Mst. Sardar Begum Farougui and 6 others v. Rashid Khatoon and 2 others (1990 CLC 83 relevant at p. 91) rendered by a Division Bench of the High Court of Sindh to which one of us (Ajmal Mian, CJ) was a party and the author of the judgment, which reads as follows:

“Apparently the instant case falls within the category of public litigation as the public-at-large is interested to ensure that the constructions are not raised in violation of the building bye-laws and the Ordinance by misusing a status quo order of a Court. The intervention by this Court will discourage the aforesaid illegal practice obtaining in Karachi.”

The concept of locus standi has undergone material change in case of public interest litigation. Reference may be made to the judgment of this Court in the case of Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693) in which a direct Constitution petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as the Constitution) was filed by some public spirited persons assailing construction of a grid station by the WAPDA in a thickly populated area. The above Constitution Petition was opposed by the counsel, who appeared on behalf of the WAPDA inter alia on the ground that no violation of the Fundamental Rights was involved. The above contention was repelled as under:—

“Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word ‘life’ is very significant as it covers all facets of human existence. The word ‘life’ has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and Constitutionally. For the purposes of present controversy suffice to say that a person is entitled to protection of law from being exposed to hazards of electromagnetic fields or any other such hazards which may be due to installation and construction of any grid station, and factory, power station or such like installations. ………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………..

The Constitutional Law in America provides an extensive and wide meaning to the word ‘life’ which includes all such rights which are necessary and essential for leading a free, proper, comfortable and clean life. The requirement of acquiring knowledge, to establish home, the freedoms as contemplated by the Constitution, the personal rights and their enjoyment are nothing but part of life. A person is entitled to enjoy, his personal rights and to be protected from encroachments on such personal rights, freedom and liberties. Any action taken which may create hazards of life will be encroaching upon the personal rights of citizen to enjoy his personal rights and to be protected from encroachments on such personal rights, freedom and liberties. Any action taken which may create hazards of life will be encroaching upon the personal rights of a citizen to enjoy the life according to law. In the present case this is the complaint the petitioners have made. In our view the word ‘life’ constitutionally is so wide that the danger and encroachment complained of would impinge fundamental right of citizen. In this view of the matter the petition is maintainable.” [pp. 2902, 2903, 2904] B

(c) Constitution of Pakistan (1973), Article 9 & 199
r/w Karachi Development Authority Order (5 of 1957)—Art. 52-A—and
Karachi Building and Town Planning Regulations, 1979, Sched. D, para. 3

In our view, the appellants have the right to use the Park with all amenities as was envisaged under the approved K.D.A. Scheme No. 5. The use of the Park involves enjoyment of life which is covered by the word life employed in Article 9 of the Constitution as interpreted by this Court in the abovequoted extract from the judgment in the case of Ms. Shehla Zia and others v. WAPDA (supra). The appellants, therefore, have the right to ensure that the official respondents do not grant approval of a plan in respect of the Plot which may be violative of the provision of the Order and the Regulations and which may impinge on their right of enjoyment of life. [p. 1904] C

(d) Constitution of Pakistan (1973), Article 199

Reference may also be made to the treatise Judicial Review of Administrative Action (Fifth Edition) by de Smith, Woolf & Jowell relied upon by Mr. Naim-ur-Rehman, wherein the authors have summarised the concept of locus standi in the context of ‘sufficient interest’ as under:—

“The general approach can be summarised as follows:—

(1) ‘Sufficient interest’ has to receive a generous interpretation. It has to be treated as a broad and flexible test.

(2) Only issues as to standing where the answer is obvious should be resolved on the application for leave. In other cases lack of standing should not prevent leave being granted.

(3) Issues as to standing at the leave stage do not depend on the remedy which is then being claimed.

(4) If the applicant has a special expertise in the subject-matter of the application that will be a factor in establishing sufficient interest. This applies whether the applicant is an individual or some type of association. The fact that the applicant’s responsibility in relation to the subject of the application is recognized by statute is a strong indication of sufficient interest.

(5) A great variety of factors are capable of qualifying as sufficient interest. They are not confined to property or financial or other legal interests. They can include civic (or community) environmental and cultural interests. The interests can be future or contingent.

(6) The gravity of the issue which is the subject of the application is a factor taken into account in determining the outcome of questions of standing. The more serious the issue at stake the less significance will be attached to arguments based on the applicant’s alleged lack of standing.

(7) In deciding what, if any, remedy to grant as a matter of discretion, the Court will take into account the extent of the applicant’s interest. At this stage different remedies may require a different involvement by the applicant.”

The above quoted passage from the well-known treatise indicates that the concept of locus standi has been whittled down inasmuch as the expression “sufficient interest”, inter alia, includes civic or (community) environmental and cultural interests. [p. 2904, 2905] D

(e) Constitution of Pakistan (1973), Article 199

We may also refer to the following judgments of this Court in which the concept of locus standi has been dilated upon in relation to a Constitution petition and, inter alia, it has been held that for maintaining a proceeding in writ jurisdiction, it is not necessary that a writ petitioner should have a right in the strict juristic sense, but it is enough if he discloses that he had a personal interest in the performance of the legal duty, which if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise:—

(i) Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1969 SC 223).

(ii) Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416).

(iii) Mrs. Benazir Bhutto and another v. Federation of Pakistan and another (PLD 1989 SC 66).

(iv) Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473).

(v) Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others (PLD 1996 SC 324).

(vi) Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliament Affairs, Islamabad and others (PLD 1998 SC 161).

(vii) Mohtarma Benazir Bhutto and another v. President of Pakistan and others (PLD 1998 SC 388). [p. 2905] E

(f) Constitution of Pakistan (1973), Article 199 (1)(a)
r/w Karachi Development Authority Order (5 of 1957)—Art. 40 & 52-A—and Karachi Building and Town Planning Regulations, 1979, Sched. D, para. 3

However, Mr. Farooq H. Naik has referred the case of Islamic Republic of Pakistan v. Muhammad Saeed (PLD 1961 SC 192), in which this Court with reference to Article 170 of the late Constitution of Pakistan, 1956 observed that in order to entitle a person to ask for the performance of any public duty by a mandamus, it is necessary for him to show that he has some particular ground for claiming such performance, apart from the fact that he is interested in the performance of such a duty as a member of a class of persons. All of whom are equally interested therein.

The above case has no application to the present case. The appellants are entitled to a declaration in terms of sub-paragraph (ii) of paragraph (a) of clause (1) of Article 199 of the Constitution that the approval of the building plan of respondent No. 5 in respect of the Plot is without lawful authority and of no legal effect in view of the violation of Articles 40 and 52-A of the Order read with para. 3 of Schedule ‘D’ to the Regulations. As a consequential relief, the appellants are also entitled to seek removal of the unauthorised structure form the Plot. Even otherwise, the appellants have sufficient interest to ensure that the Plot should not be used for any other purpose than for which it was carved out pursuant of K.D.A. Scheme No. 5. [p. 2906] F

(g) Constitution of Pakistan (1973), Article 199

In our view, laches per se is not a bar to a Constitutional petition. There is a marked distinction between delay in filing of a legal proceedings within the period specified in an Article of the Schedule to the Limitation Act, 1908 and the delay in filing of a Constitutional petition for which no statutory period is provided for. In the former case delay of each day is to be explained by furnishing sufficient cause for seeking condonation of delay of delay under section 5 of the Limitation Act in filing of a legal proceedings after the expiry of the statutory period. Whereas, in the latter case, the delay or the question of laches is to be examined on equitable principles for the reason that grant of Constitutional relief is a discretionary relief and the Court may decline to press into service its Constitutional jurisdiction if it would be inequitable keeping in view the conduct of a petitioner. The question of delay or laches is to be considered with reference to the facts of each case. Delay/laches of several years can be overlooked in a Constitutional petition if the facts of the case and dictates of justice so warrant as pointed out by this Court in the case of The Chairman, District Screening Committee, Lahore and another v. Sharif Ahmad Hashmi (PLD 1976 SC 258) (supra), or the delay/laches of few months may be fatal to a Constitutional petition. [p. 2907, 2908] G

(h) Constitution of Pakistan (1973), Article 199
r/w Karachi Development Authority Order (5 of 1957)—Art. 40 & 52-A—and Karachi Building and Town Planning Regulations, 1979, Sched. D, para. 3

Having dealt with the legal position on the question of laches, we may revert to the facts of the present case in order to determine, whether there has been any laches on the part of the appellants as to warrant dismissal of their above Constitution Petition. From the facts of the case, it is evident that appellant No. 1 opposed the approval of the plan of the high-rise building on the Plot, inter alia, through his letters dated 15-6-1992 and 18-8-1993 besides his articles published in daily English newspaper ‘Dawn” Karachi 18-6-1993 and 30-7-1993. The Sub-Committee constituted by the Committee appointed by the Chief Minister to examine construction of high-rise buildings also opposed respondent No. 5’s then proposed high-rise building. In spite of this, according to respondent No. 5, it started construction work on the Plot in June 1993, whereas the above Constitution Petition was filed on 18-12-1993. In our view, there is no laches of the nature which could warrant dismissal of the above Constitution Petition on the above ground. Respondent No. 5 knew from the very inception when it obtained the approval of his first building plan that the Plot was carved out for construction of a revolving restaurant and not for a high-rise building comprising commercial-cum-residential complex and that it was opposed by the public spirited people. The same was the position when it submitted his revised building plan. However, it managed and manoeuvered approval of the plan no through the proper channel but because of the influence of the then Chief Minister. In the above factual background, it is not open to respondent No. 5 to raise the plea of laches or acquiescence. The above plea is only available to a respondent who acts bona fide under the belief that what he is doing is legal and proper and the same cannot be invoked in aid by a respondent who knew from the very inception that what he was doing was on account of his own manipulation contrary to law. [p. 2908] H

(i) Constitution of Pakistan (1973), Article 199
r/w West Pakistan General Clauses Act (VI of 1956)—S. 20—Karachi Development Authority Order (5 of 1957)—Art. 52-A— and Karachi Building and Town Planning Regulations, 1979, Sched. D, para. 3

In our view, the principle of locus poenitentiae is not attracted to the present case, inter alia, for the reasons, firstly, the appellants were not the authority which had approved respondent No. 5’s building plan in violation of the above provisions of the Order and the Regulations. Secondly, since the above approval was in contravention of the provisions of law, the above illegal action/order cannot be treated as irrevocable or past and closed transaction. It may also be stated that as the order of approval of the plan is illegal, perpetual rights cannot be gained on the basis of the same. Thirdly, respondent No. 5 was put to notice before it started its construction work to the effect that the approval obtained by it for a high-rise building is in violation of the provisions of the Order and the Regulations and determinental to the interest of the public-at-large. The above contention, therefore, also fails. [p. 2910] I

(j) Constitution of Pakistan (1973), Articles 25 & 199

We may now take up Mr. Farooq H. Naik’s contention that since a number of high-rise buildings had been constructed even on the residential plots, singling out of respondent No. 5 is violative of Article 25 of the Constitution, it may be mentioned that the above contention is also not tenable. A high-rise building constructed on a residential plot cannot be equated with a high-rise building to be constructed on a portion of the park land carved out for a revolving restaurant which has direct nexus with the object of the Park.

It was also contended by Mr. Farooq H. Naik that third party’s rights have been created by booking certain points of the proposed building. In support of his submission he has relied upon the case of State of M.P. and others, etc. etc. v. Nandlal Jaiswal and others, etc. etc. (AIR 1987 SC 251). [p. 2910] J

(k) Constitution of Pakistan (1973), Article 199
r/w Karachi Development Authority Order (5 of 1957)—Art. 40 & 52-A—and Karachi Building and Town Planning Regulations, 1979, Sched. D, para. 3

The above case has no application to the facts of the present case. Firstly, there is nothing on record to show that factually any third party has acquired interest. Secondly, in the above report respondents Nos. 5 to 11 acquired land, constructed distillery buildings, purchased plant and machinery and spent considerable time, money and energy towards setting up the distilleries. The writ petitioners did not raise any objections, which is not the case in the instant case. In the present case, the proposed building has not been completed but some construction work has been carried out despite protest of the public. Thirdly, the major part of the above portion of the proposed building has been constructed after the filing of the above Constitution petition and, therefore, the doctrine of “lis pendens” is applicable to the case in hand i.e., that the third party will be bound by the result of the litigation. In this regard reference may be made to the following cases:–

(i) Karam Elahi v. The Settlement and Rehabilitation Commissioner (Lands), Lahore and 2 others (1976 SCMR 143).

In which during the pendency of the litigation in respect of evacuee land the same was transferred to another person. eventually, the transferred land was cancelled and it was held that the petitioner in that case having purchased the land during pendency of the writ by the respondent was hit by the doctrine of lis pendens and was bound by ultimate outcome of decision.

(ii) Messrs Aman Enterprises, Sialkot v. Messrs Rahim Industries Pakistan Ltd., Sialkot and another (PLD 1993 SC 292).

In the above case, this Court while setting aside the High Court judgment declining the relief of specific performance on the ground that the suit property was sold to a third party, held that rule of lis pendens was fully applicable to the subsequent vendee as, if he had made inquiries from the establishment to which property in question originally belonged and with whose approval it could have been sold he would have come to know that agreement of sale existed between appellant/first-vendee and the respondent-vendor and, thus, the appellant/first-vendee was entitled to a decree for specific performance of the agreement to sale.

The above reports are fully applicable to the present case. The third parties may have cause of action against respondent No. 5, but they cannot defeat the right of the public-at-large. [p. 2911] K & L

(l) Constitution of Pakistan (1973), Article 199
r/w Sindh Building Control Ordinance (XVII of 1979)—Karachi Building and Town Planning Regulations, 1979, Reglns. 16, 20 & 25

Before concluding the above judgment, we may refer to the conflict of views between the two judgments of this Court in the case of Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512) (supra) and Multiline Associates v. Ardeshir Cowasjee and others (PLD 1995 SC 423) (also reported in 1995 SCMR 362) (supra) noticed in the leave granting order which is to be resolved. The former case was decided on 31-3-1994 by a Bench comprising Ajmal Mian, Sajjad Ali Shah and Saleem Akhtar. JJ. (as then they were), whereas in the latter case judgment was rendered on 22-1-1995 by a Bench comprising Sajjad Ali Shah, C.J., Mir Hazar Khan Khoso and Muhammad Munir Khan, JJ. (as then they were). It appears that while deciding the latter case notice of the above earlier judgment of Abdul Razak was not taken though, according to Mr. Naimur Rehman, the same was cited. It may be pointed out that a Bench of the same number of Judges of the same High Court, or of the Supreme Court, cannot deviate from the view of an earlier Bench as rightly has been held in the case of Multiline Associates v. Ardesher Cowasjee and others (PLD 1995 SC 423) (supra) in relation to the High Court.

The perusal of ……………………. the above judgments indicates that in the case of Abdul Razak, this Court has held that the power to regularize contained in the Ordinance and the Regulations is intended and designed to be exercised when irregularity of the nature which does nto change the complexin or character of the original proposed construction nor it adversely affects third parties’ rights/interests. It has been further held that the paramount object of modern city planning seems to be to ensure maximum comforts for the residents of the city by providing maximum facilities and that a public functionary entrusted with the work to achieve the above objective cannot act in a manner, which may defeat the above objective. It has been further held the deviation from the planned scheme will naturally result in discomfort and inconvenience to others. It has also been held that framing of a housing scheme does not mean simpliciter, levelling of land and carving out of plots, but is also involves working out approximate requirement of water, electricity, gas, sewerage lines, streets and roads etc. and if a housing scheme is framed on the assumption that it will have residential units 1 + 1 but factually the allottees of the plots are allowed to raise multi-storeyed buildings having flats, the above public utility services will fall short of requirements, with the result that everyone living in the aforesaid scheme will suffer. It has also been held that to reduce the miseries of most of the Karachiites, it is imperative on the public functionaries like the Authority to ensure adherence to the Regulations. However, it has also been clarified that it may not be understood that once a scheme is framed, no alterations can be made. Alterations in a scheme can be made for the goods of the people at large, but not for the benefit of an individual for favouring him at the cost of other people.

On the contrary, in the judgment in the case of Multiline Associates (supra) somewhat different view has been taken. It has been held that if the builders have got their building plan regularise aftercomposition and have paid requisite fees for additional floors and have obtained no objection certificate, there is no violation of the Regulations. It has been further held that in the city of Karachi there is congestion on account of over-population and in such situation there is no other way out except construction of high-rise buildings. Such high-rise buildings are already in existence in the close vicinity of the building in dispute. It has been also held that it is imperative upon the Court while exercising jurisdiction in a Constitution Petition to see that discretion is to be exercised in such a way that mischief and chaos is prevented particularly when construction of high-rise building is in public interest in the area in the neighborhood of which there are no high-rise buildings already constructed.

The above conclusion recorded in the case of Multiline Associates v. Ardeshir Cowajee and others (PLD 1995 SC 423) (supra) runs contrary to what has been held in the judgment of this Court in the case of Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512) (supra) highlighted hereinabove. With due defence, we are unable to subscribe to the above view found favour in the case of Multiline Associates v. Ardeshir Cowasjee and others (PLD 1995 SC 423). The legal position enunciated, inter alia, in the abovequoted extracts from the judgment in the case of Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512) is in consonance with the provisions of the Karachi Development Authority Order, 1957, Sindh Building Control Ordinance, 1979, and the Building Regulation, 1979. The power to regularise contained in the Ordinance and the Regulations is intended and designed to be exercised when irregularity is of the nature which does not change the complexion or character of the originally proposed construction. The Government or the Authority under the Ordinance does not enjoy unbridled or unfettered power to compound each and every breach of the Regulations. The Regulations should be applied for the benefit of the public and not for favouring an individual. Simpliciter the factum, that on account of termendous increase in the population in Karachi the situation demands raising of high-rise buildings, will not justify the conversion of residential plots originally intended to be used for building ground-plus-one and allowing the raising of high-rise buildings thereon without providing for required water, electricity, gas, sewerage lines, streets and roads etc. [pp. 2912, 2915 & 2916] M & N

(e) Constitution of Pakistan (1973), Article 199
r/w Karachi Development Authority Order (5 of 1957)—Art. 40—and
Karachi Building and Town Planning Regulations, 1979, Sched. D, para. 3

We may observe that even when the conversion of a residential plot on the main roads into a commercial plot is warranted on account of change in the situation, the legal requirement of public notice, inter alia, as envisaged by Article 40 of the K.D.A. Order (if applicable) and para. 3 of Schedule ‘D’ to the Regulations is to be complied with. Secondly, simpliciter conversion of a residential plot into commercial does warrant granting of permission for a high-rise building having 17/18 floors, but the Government or the Authority is under obligation to keep in view the quantum of water, electricity, gas sewerage lines, streets and roads etc., available in the locality involved, and efforts should be made to allow minimum floors, so that the same may cause less inconvenience and discomfort to the inhabitants of the locality involved.

The Courts while considering question of ad interim or final relief in a case in which deviation of the above nature is allowed, or breach of the approved plan is complained, should keep in mind above factors. They should also keep in view the following observation made in the judgment of this Court in the case of Mst. Zubaida A. Sattar and others v. Karachi Building Control Authority and others (1999 SCMR 243 at P/148 para. 7) which reads as follows:—

“We may point out that unfortunately it has become common practice in Karachi that some builders obtain approval of plans for raising building Ground-plus-One, but actually they construct multi-storeyed high-rise buildings on the sites to the detriment of the neighbours in the locality concerned as it disturbs the amenities besides creating environmental problems. Such practice is to be deprecated as was pointed out in the judgment of this Court in Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512). It may further be observed that some builders raise unauthorised constructions after obtaining status quo orders from the Courts.”

We, therefore, hold that the judgment in the case of Multiline Associates v. Ardsher Coasjee and others (PLD 1995 SC 423) (supra) to the extent of inconsistency to the judgment in the case of Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512) (supra) does not reflect the correct legal position and, thus, the same is overruled to that extent.”

The upshot of the above discussion is that with the above clarifications as to the conflict of views in the above two judgments of this Court, the above appeal stands disposed of in terms of the short order, dated 3-5-1999, which is incorporated as a part of this judgment and which reads, as under:—[pp. 2916, 2917] O

ORDER

For the reasons to be recorded later on, the appeal is accepted and the impugned judgment of the learned Division Bench of the High Court is set aside. The Constitution Petition No. D-3501 of 1993 filed by the appellant is allowed and it is declared that the plan approved for the construction of commercial-cum-residential complex by the official respondent is without lawful authority and of no legal effect. It is further declared that no commercial-cum-residential complex can be constructed on the disputed plot but only a revolving restaurant as to be approved by the official respondent can be erected for the benefit of the visitors to the park.

That in case the respondent No. 5, namely, M/s Pearl Builders (Pvt) Limited is interested in constructing a revolving restaurant, it will submit a new plan of the same approval of the official respondent with a period of sixty days from today.

After the approval of the plan, the structure already constructed will be removed except the portion which can be utilised for the construction of revolving restaurant with approval of the official respondent concerned.

That in case the respondent No. 5 fails to submit any plan for approval in respect of revolving restaurant within the above stipulated period of sixty days, the official respondent concerned shall demolish the existing structure at the cost of above respondent No. 5.

There will be no order as to costs.