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Petitioner: ARDESHIR COWASJEE and 11 otherss VS Respondent: SINDH PROVINCE and others
Court Name: Sindh High Court Judge(s): Sabihuddin Ahmed, Syed Ali Aslam Jafri Title: ARDESHIR COWASJEE and 11 otherss vs SINDH PROVINCE and others Case No.: Constitutional Petition ,No,D-856 of 2002 Date of Judgment:2003-10-14 Reported As: 2004 CLC 1353 Result: Order accordingly
JUDGMENT
JUDGMENT ' SABIHUDDIN AHMED, J.--- This petition filed by four organizations and eight individuals purports to question the Constitutional validity of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002 (the impugned Ordinance). Before entering upon a discussion on the merits of the case, it may be stated by way of brief background that for the purpose of Regulation of planning, construction and control of buildings in the Province, the Sindh Building Control Ordinance (the 1979 Ordinance) was promulgated in 1979, whereby inter alia a building could only be constructed after approval of its plan by an Authority established under the Ordinance to prevent unregulated construction of buildings in an urban area, which could create several environmental hazards and drain on amenities available. The Authority was empowered to frame Regulations for the purpose of giving effect to the requirements of the statute and till framing of such Regulations the Karachi Building and Town Planning Regulations, 1979, framed by the Government of Sindh and other bye-laws framed by different local bodies were deemed to be treated as Regulations under the said Ordinance. The Regulations lay down detailed standards for construction of buildings in different areas. 2. Section 6(1) of the Ordinance provides that no building shall be constructed before its plan is duly approved by the Authority and no objection certificate has been granted. Section 7-A stipulates that whenever the provisions of section 6(1) have been violated the Authority may demolish the building at the cost of the builder in cases of public buildings and the owner in other. Section 19 envisages that contravention of any provision of the Ordinance would amount to an offence punishable with imprisonment arid fine.
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3. However, it was found even several years after the enforcement of the provisions of the 1979 Ordinance that many buildings have been constructed in violation of the approved plan or the Regulations which have acquired statutory force. A number of such matters have been brought to the notice of the Court and this Court as well as the Honourable Supreme Court in a large number of cases has found that the Authority/K.B.C.A. Did not fulfil its legal obligations to demolish such unauthorized buildings and issued appropriate directions requiring it to do so. At the same time, we may also take judicial notice of the fact that in several cases, particularly those of illegally constructed residential apartments, the occupants attempted to stall demolition claiming that they were deceived by builders into investing their life-savings in purchase of such apartments and they would be the sufferers on account of Court orders. Nevertheless, in view of the well-settled principle that a transferee from a builder acquired no better right than his predecessor barred them from seeking any relief as held inter alia, by the Honourable Supreme Court in Muhammad Salim v. Administrator Karachi Metropolitan Corporation 2000 SCM R 1748. 4. It was against this background that the impugned Ordinance was promulgated, which was to remain operative for a period of one year from its commencement. The salient provisions whereof may be reproduced as follows:-- (3) Overriding effect.--- The provisions of this Ordinance shall have effect, notwithstanding anything contained in any law for the time being in force. - (4) Conversion of plots.---No plot shall be used for any purpose other than the purpose for which it was granted except with the approval of the authority which granted the plot on the conditions and, on payment of the fees as may be prescribed. (5) .Regularization.---. Notwithstanding anything contained in any law for the time being in force or judgment, order or decree of any Court, any building constructed before the commencement of this Ordinance in violation of the provisions of the Ordinance or Regulations made thereunder. May be regularized by the Authority appointed under the Ordinance on the conditions and on payment of the fees as may be prescribed: ' Provided that no building shall be regularized if such building-- (a) is constructed on, a plot reserved for any other purpose until its unauthorized use is approved under this Ordinance; (b) has environmentally degrading activities such as manufacturing,. Storage of dangerous or inflammable materials or cater to the service of transport sector until such activities are removed; (c) uses parking space for other purposes until such space is restored to its original purpose; (d) has been constructed in violation of the reservation of road widening scheme or property line, is/are in any hazardous use; and (e) has been constructed within 3/4 miles (1.2 km.) radius of Quaid-e-Azam's Mausoleum above a podium level of 91 feet (27.72 m) from the mean sea level. 5. Mr. M. Naimur Rehman, Advocate for the petitioners Nos.2, 5, 6, 7 and 8 and Kazi Faez Essa the petitioner No,4 also appeared as counsel for petitioners Nos.1, 3, 9, 10, 11 and 12 addressed us in great detail contending that the impugned Ordinance was ultra vires the Constitution and that the dissolution of the 16 Members Committee comprising inter alia the petitioners Nos.1 to 4 and a representative of the petitioner No,5 was illegal. 6. Since question involving interpretation of the Constitution and of substantial public importance were raised, the petition was admitted and all parties as well as the Advocate-General, Sindh were put to notice for final hearing. The respondent No,4 i.e. Association of Builders and Developers (A.B.A.D.) was not initially arrayed as party to the petition, but upon an application made by them, it was considered that their point of view also needed to be considered and accordingly they were directed to be joined. We have heard tnt learned counsel for the parties at great length and are particularly grateful to the counsel for the petitioners as well as Mr. Abid Zuberi learned counsel for
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respondent No,4 who have also provided written notes of their arguments which have been placed on record. 7. With respect to the dissolution of the committee to oversee and monitor the functioning and operation of the respondent No,2 (K.B.C.A.) it may be stated that section 4-B of the 1979 Ordinance empowers the Government to appoint a committee, >which may, subject to the control and directions of the Government oversee the functioning of an Authority. In the exercise of such statutory powers the respondent No,1 appointed a 16 Members Committee comprising concerned public bodies, private organizations and citizens "for a period of 3 years and until further orders". The Committee was authorized to take varie of measures in making recommendations to the Government for effecting enforcement of the Ordinance, drafting Regulations and amendment in the Statute for approval of the Government, oversee and monitor grant of approvals, lay down guidelines for doing so and initiate action against officers or employees of the Authority acting contrary to the provisions of the Ordinance and the Regulations or indulging in corrupt practices. It was required to meet.At least once a month. 8. Though apparently the role of the Committee was only recommendatory, some provisions show that it was far more effective. Under para.1(xv) the Government was required to commence disciplinary action against a corrupt employee within seven days of the receipt of a complaint from the Committee. Under paras.11 and 12 the Government or the Authority were required to act on the recommendations of the Committee with or without modifications and in case it decided not to do so it was required to give reasons for rejecting such proposals. It appears that the aforesaid Committee was denotified by a Notification of the Government dated 4-4-2002, though no reasons for doing so have been given out in the Notification. The aforesaid denofication has also been questioned in this petition. 9. As regards the Constitutional validity of the impugned Ordinance Messrs Naimur Rehman and Kazi Faez Essa urged as follows:- "(i) That no emergency requiring immediate legislation existed at the time of promulgation of the impugned Ordinance. The Ordinance therefore, was ultra vires the legislative powers of the Governor and in any event amounted to mala fide exercise of public power. (ii) That the non obstante clause in section 5 of the Ordinance purports to undo several pronouncements of the superior Courts and is therefore, ultra vires the powers of the Legislature. It also offends the Constitutional guarantee of independence of the judiciary. (iii) That the Ordinance is violative of the fundamental rights guaranteed by Article 9 (right to life) Article 14 (inviolability of dignity of man) and Article 25 (equal protection of law) of the Constitution." 10. Mr. Anwar Mansoor Khan learned Advocate-General, Sindh did not attempt to deal with the questions raised by learned counsel for the petitioners but confined his contentions to the following preliminary .Objections:- "(a) That the impugned Ordinance ceased to remain operative after one year of its promulgation and no longer remained on the Statute Book on the date of hearing. It was the consistent practice of this Court not to dilate upon purely academic questions. (b) That in any event the petitioners had no locus standi to challenge vires of the impugned Ordinance. The petitioners were in fact aggrieved by the denotification of the supervisory committee and public interest was being pleaded with the mala fide object of settling private scores. (c) That in any event the petition was not entertainable by this Court under the garb of public interest litigation." 11. Mr. Abid Zuberi learned counsel for respondent No,4 however, proceeded to respond-to all questions raised by Mr. Naimur Rehman and argued that:-
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(i) The Legislature always had the authority to nullify the effect of a judgment of the superior Courts by enacting curative legislation. (ii) There was no violation of the fundamental rights guaranteed by Articles 9, 14 and 25 of the Constitution. (iii) That the question whether Ordinance making power was justifiably exercised was not justiciable before Courts." 12. It may first be convenient to take up the preliminary objections raised by the learned Advocate- General regarding maintainability of the petition. Indeed he is right to the extent that Courts do not normally pronounce upon purely academic controversies. The question to be decided nevertheless, is whether the controversy has really become only academic upon the expiry of the Ordinance.From the material produced by the respondent No,2 itself is evident that more than 4000 buildings were "regularized" during the period the Ordinance remained operative and several applications received during the aforesaid period are being scrutinized by the said respondent. Indeed a pronouncement regarding the validity of the Ordinance would affect the status of all such buildings, as such we find no force in the objection and would repel the same. 13. As regards the question of mala fides of some of the petitioners it may be stated that the locus standi of the petitioners Nos.1 to 5 to question their alleged removal from an office established under statutory powers can hardly be questioned. As to their mala fides one may refer to a statement in writing submitted by Kazi Faez Essa, Advocate who is the petitioner No,4 dated 3-9- 2003 to the effect that he does not seek reappointment as a member of the Oversee Committee, but is interested in ensuring that the Committee is constituted and functions in a fair and transparent manner. This statement itself excludes mala fides on his part. In any event even if the petition on behalf of some of the petitioners is found to be not maintainable, locus standi of others cannot be questioned. In any case the allegations of mala fides cannot, by any means measure upto the standards laid down by the Honourable Supreme Court in Said Ahmed Khan's case PLD 1974 SC 151. We, therefore, find little force in this contention either. 14. Learned Advocate-General appears to be correct to the extent that, as distinguished from a petition for enforcement of fundamental rights before the Honourable Supreme Court under Article 184(3) of the Constitution, this Court can only entertain a petition moved by an aggrieved person. Nevertheless, the expression "aggrieved person" has not been confined to a person having strict legal right but has been held to extent to any person having a legitimate interest in the performance of a public duty. During the last 15 years several pronouncements of the superior Courts including the Honourable Supreme Court have consistently stressed upon a wider impact of the expression "aggrieved person" particularly in cases relating to high rise buildings and protection of environment. It has been held that every resident of an area or even that of a town has locus standi to ensure that the building laws are followed. By way of illustration one might refer to the pronouncement of the Honourable Supreme Court in Aredeshir Cowasjee v. Karachi Building Control Authority 1999 SCM R 2883. Therefore, we cannot see how the vires of the law enabling regularization of buildings constructed in violation of the Statute and Building Regulation cannot be allowed to be questioned by any citizen. We, therefore, find no force in this contention either. 15. It may now be appropriate to consider the contentions of learned counsel for the petitioners. In support of the contention that the Ordinance making power under Article 129 of the Constitution could only be exercised in exceptional situations to deal with an emergent situation, learned counsel argued that legislation through Ordinance could be effected if two conditions namely, the Provincial Assembly not being in session and that circumstances existed which required immediate. Action. He contended that while the first requirement stood met, no special need requiring immediate action was shown. Mr. Abid Zuberi in reply, however, argued that the question as to immediate need for legislation was not justiciable and the subjective satisfaction of the
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Governor as to the need for legislation was sufficient. In support of his view Mr. Zuberi relied upon Division Bench judgment of this Court in Abdul Majid v. Province of Sindh PLD 1974 Kar. 417, where it was held that Governor was the sole Judge as to the existence of emergency for taking immediate action. We find force in Mi. Zuberi's contention because apart from being premised on binding precedent, it tends to acknowledge the well-settled principle that Courts do not sit in judgment over the wisdom of the Legislature and while acting under Article 128 the Governor exercises legislative and not merely executive powers. 16. Upon the same principle, both Messrs Waqar Lodhi and Abid Zuberi emphatically argued that the contention to the effect that legislative power was exercised mala fide could not be sustained. Reliance was placed upon the well-known pronouncement of the Honourable Supreme Court in Fauji Foundation v. Shamimur Rehman Alvi PLD 1983 SC 457 where it was held, that mala fides could not be attributed to the Legislature. We may add that a Division Bench of this Court also had the occasion to examine such a plea in the relative recent case of Ghulam Nabi v. Province of Sindh PLD 1999 Kar. 372 to which one of us (Sabihuddin Ahmed, J.) was a member. Having noticed the observations of Kaikaus, J. In Chaudhari Qasimuddin v. Province of West Pakistan PLD 1957 Lah. 76 to the effect that an Ordinance could always be questioned on the ground of mala fide like any other executive act, it was found that such view stood expressly overruled in Fauji Foundation's case mentioned above. 17. Secondly it was argued that the provisions of sections 3 and 5 'stipulating that the provisions of the impugned Ordinance will prevail over all other laws and those of section 5 requiring that an illegal building could be regularized notwithstanding any judgment of any Court erodes the principle of independence of judiciary.In this context eloquent arguments as regards the primacy of the concept of independence of judiciary laid down in various recent pronouncements of the superior Courts were addressed. Indeed there can be no doubt that independence of judiciary has repeatedly been held to be one of the most important pillars of our Constitutional system. The question nevertheless, appears to be whether a legislative dispensation purporting to undo the effect of a judicial verdict can be treated as an erosion of this principle. In support of his contention, Kazi Faez Essa relied upon certain observations from the leading judgment of Zafar Hussain Mirza, J. (as his Lordship then was) in Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan 1993 SCM R 1905 to the following effect:-- ' "It may be sufficient merely to pronounce in the Statute by means of a non obstante clause that the decision of the. Court shall not bind the Authorities because that will amount to reversing a judicial decision rendered in exercise of the judicial power which is not within the domain of the Legislature." 18. On the other hand Mr. Abid Zuberi drew our attention inter alia to two pronouncements of the Honourable Supreme Court in Haider Automobile v. Pakistan PLD 1969 SC 623 and Zaman Cement Company v. Central Board of Revenue 2002 SCM R 312. In the first case the terms and conditions of service of Honourable Judges of superior Court were directly affected by a Presidential Ordinance whereby former Judges (who were at that time entitled to practice after laying down their offices) were debarred from practicing before Courts in which they acted as Judges or those subordinate thereto. While expressing that view that it would have been far more desirable to lay down such terms in the Constitution itself their Lordships held that as long as Constitution permitted such terms to be regulated by legislation, an Ordinance made by the President in exercise of legislative powers could not be struck down. In the case of Zaman Cement Company their Lordships after examining a number of earlier precedents including Army Welfare Sugar Mills v. Federation of Pakistan 1992 SCM R 1652 held that rights arising from a judicial pronouncement could always be nullified by subsequent legislation.
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19. Indeed the weighty observations in Molasses Trading case cannot be overlooked. Nevertheless, in the same judgment his Lordship proceeded to dilate upon the method through which the judgment of a Court could be effectively neutralized by giving retrospective effect to legislation so to bind past and closed transactions. Eventually it was found that through the enactment of section 31-A of Customs Act, the effect of the pronouncement of the Court in Al-Samrez's case 1986 SCM R 1917 stood neutralized except to the extent that past and closed transactions were not affected. Applying the said principle to the matter before us it appears that section 5 of the impugned Ordinance does not merely state that the 'judgments of the Courts will have no effect, it proceeds to confer a power upon the respondent No,2 to regularize certain buildings during a limited period and subject to certain conditions with retrospective effect. No question of past and closed transactions appears to arise. 20. Having considered the respective contentions of learned counsel, we are unable to agree that judicial power stands eroded by enactment of the impugned provisions. In the first instance it needs to be kept in view that approval of a building plan is not the function of a Court but that of F an Authority possessing required expertise and given such powers under the law. All that section 5 appears to have done is to extend such powers in enabling the respondent No,2 even to accord post facto approval to a building already constructed subject to certain conditions and limitations. Indeed even in the case of Molasses Trading 1993 SCM R 1905 their Lordships conceded that by giving retrospective effect to a law, the Legislature could neutralize the effect of an earlier decision of a Court. Moreover, Mr. Zuberi candidly conceded that any regularization effected in violation of the impugned Ordinance could always be subject to judicial review. We, therefore, find ourselves unable to subscribe to the petitioners' view point. 21. Articles 9 and 14 of the Constitution guarantee the right to life and human dignity. Extensive reliance was placed by Messrs Naimur Rehman and Faez Issa on the pronouncement of the Honourable Supreme Court in Shehla Zia v. WAPDA PLD 1994 SC 693. In the aforesaid landmark judgment, their Lordships proceeded to hold that in Article 9 which guarantees that no person shall be deprived of life or liberty save in accordance with law. The word "life" cannot be confined to mere vegciabic or animal existence. It includes the right of all amenities and facilities which a person born in a free country is entitled to enjoy with dignity. The right to life also included the right to live in a pollution free environment and their Lordships held that construction of a grid station in a residential locality might well be treated as a threat to the enjoyment of such right and a petition for enforcement of fundamental rights under Article 184(3) would be maintainable. Mr. Abid Zuberi conceded that he did not have any cavil with the principles of law laid down in Shehla Zia's case. What needs to be seen however, is whether the impairment of the right to life or human dignity through the impugned legislation is sufficient to persuade the Court to strike it down as unConstitutional. Mr. Zuberi argued and rightly so that it was well-settled that every effort should be made to save rather than destroy a legislative instrument and the doctrine of reading it down can also be resorted to for doing so. 22. At the same time, we are perturbed by another aspect of the matter. Indeed this petition belongs to the area known as public interest litigation and is essentially of a non-adversary character. In such matters the Court does not pronounce upon the respective rights and obligations of parties arrayed before it but examines the questions raised from a broader prospective of public interest. While Mr. Zuberi effectively represented the view point of builders, unfortunately we did not hear anything from the learned Advocate-General from the standpoint of a large number of beneficiaries of the legislation i.e. The occupants of multi-storeyed apartments nor any other counsel seeking to represent their cause requested for a hearing. 23. Indeed Messrs Naimur Rehman and Faez Essa are correct to the extent tha .The right to life and human dignity includes the right to live in a healthy environment. At the same time, however, we
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cannot help taking judicial notice of the fact that thousands of individuals falling in lower income brackets have invested their life-savings in the purchase of apartments in buildings raised in violation of the requirements of the 1979 Ordinance and the Regulations. Obviously if all such buildings are required to be demolished in accordance with law prevailing prior to the impugned Ordinance, they would be rendered absolutely homeless. Indeed such people could not claim any strict legal right as understood in private law on account of their foolishness or ignorance of law. The question however, is whether they are also required to be deprived of their fundamental right to bare existence. Would their being thrown on the streets and rendered shelterless contribute to the growth of a healthy environment? After all the right to life is guaranteed even to a person found guilty of serious offence and the dignity of even a person sentenced for a heinous offence is also protected by the Constitution. In proceedings of this nature, we are of the view that Courts are required to strike a delicate balance between the various competing interests before pronouncing judgments. For these reasons we are constrained to repel the petitioners' challenge on grounds of Articles 9 and 14 of the Constitution. 24. With respect to Article 25 it was argued that equal protection of law was denied by treating law breakers at par with those who have scrupulously followed the law. We are not impressed by this contention inasmuch as by that token every Statute conferring indemnity or concessions to certain groups of people would have to be struck down. The logical…
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