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Petitioner: ARDESHIR COWASJEE and others VS Respondent: GOVERNMENT OF SINDH and others
Court Name: Sindh High Court Judge(s): Kamal Mansur Alam, Rana Bhagwan Das Title: ARDESHIR COWASJEE and others vs GOVERNMENT OF SINDH and others Case No.: Constitutional Petition No,D-1280 of 1996 Date of Judgment:1998-02-06 Reported As: 1998 MLD 1219 Result: Petition partly accepted.
JUDGMENT
JUDGMENT KAMAL MANSUR ALAM, J.---The petitioners in this petition are aggrieved by the construction of the multi-storeyed building on plot No,2, FT-3, Frere Town Quarters, Karachi, commonly known as "Glass Towers". 2.The petitioners have sought the following reliefs:-- (a)declaration be given that the plot has been converted contrary to K.D.A. Order and S.B.C.O. read with the Regulations. (b)declaration be given that the cut line of the building on the plot has to be at least 50 feet from the main road. (c)declaration be given that the building being constructed is contrary to Regulations as stated in Schedule G, item 90 Part II of the Regulations. (d)declaration be given that the building being constructed is contrary to Schedule H given in Part II at page 92 of the Regulations. (e)declaration be given that no approval can be given by the Chief Minister for construction of the building contrary to K.D.A. Order and S.B.C.O. read with the Regulations mentioned in prayer (a) to (e) above and in any event is contrary to section 6(5) and (6) of S.B.C.O. read with the Regulations. (f)the private Respondent be ordered not to construct the building contrary to K.D.A. Order and S.B.C.O. read with the Regulations. (g)direct Respondents Nos.1 to 8 and 14 to demolish the building in so far as the same is contrary to the declarations prayed for above. (h)direct Respondents Nos. 9, 10, 11 and 13 not to provide any amenities or to create any 3rd party interest in the building known as Glass Towers.
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(i)any other relief this Hon'ble Coup deems fit. 3.The plot on which the disputed building is being constructed is situated in the Frere Town Quarters which used to be essentially a residential area but later several plots in the area, mainly those falling on both sides of the main Clifton Road (Abdullah Haroon Road) were commercialised from tire to time and multi-storeyed commercial buildings raised thereon; such conversion having commenced, allegedly, way back in 1980, by now, admittedly, large number of such buildings have already come up in the area. The plot in question, presently owned by the respondent No,16, too used to be a residential plot before its commercialisation in July 1995, on payment of the conversion charges of Rs,2,28,38,400. The plan for constructing a commercial building comprising basement + ground + 1/3rd loft + 4 upper floors was finally approved by the Karachi Building Control Authority (respondent No,6) on 21-8-1995. Subsequently, respondent No,19 builder approached the then Chief Minister of Sindh, seeking permission for the construction of a high-rise building consisting of abasement + ground + mezzanine + 2 parking floors and 14 upper floors and the then Chief Minister of Sindh by order dated 19-1-1996 granted such permission. Construction on the plot was undertaken by the respondent No,19 and while it was still in the initial stages the officers of the respondent No,6 discovered deviation from the approved plan, whereupon notice was issued but before any demolition could be undertaken the owners filed on 25-1-1996 Suit No,55 of 1996 in this Court against respondents Nos.5 and 6 and obtained an interim order that; No adverse action will be taken against the plaintiff". This suit, we are informed, is still pending. With the above interim order in hand the construction continued and by the time this petition was filed and ad interim order restraining further construction was issued on 6-8-1996 the structure of the building is said to have almost completed. 4. Mr. Naimur Rehman, the learned counsel for the petitioners has challenged the construction of the aforesaid building broadly on the following grounds:-- (i)that the conversion of the said plot from residential to commercial was illegal, (ii)that the offending structure was being raised on portion of the Clifton Road (Abdullah Haroon Road) earmarked for future increase in its width, (iii)that the building in dispute was being constructed in violation of the 'approved plan, and (iv)that the permission granted by the then Chief Minister to the respondent No,19 for raising high- rise building consisting of basemnet + ground + mezzanine + 16 floors was contrary to law, rules and regulations. However, last of the above objections was later not pressed after the statement of the learned Advocate-General Sindh that the permission granted by the Chief Minister for high-rise building had been withdrawn and it was stated at the bar by the learned counsel for respondents Nos.16 and 19 after due instructions from his clients that they would not construct any additional floor beyond the approved plan. 5. Before we take up the contentions of the petitioners' counsel, we would like to dispose of the objection raised by Mr. Abdul Hafeez ..Pirzada, learned counsel for respondents Nos.16 to 19, about the petitioner's' locus standi to maintain the petition. It was argued by the learned counsel that all the petitioners are residing at quite far off places from the building in question and that none of these is living in near vicinity thereof so as to complain of violation of personal right. It was submitted that unless some personal right of the petitioners had been infringed they would have no locus standi to maintain the petition. Support for the contention was sought from the following reported as well as unreported decisions including cases from Indian and English jurisdiction:-- "Unreported interim order in the case of Mst. Zubaida v. Pakistan State Oil House and others (Civil Petition No,D-210 of 1991). Unreported interim order in the case of Ameer Nawaz Khan Zai and others v. Karachi Building Control Authority and others (C.P. No,2651 of 1993).
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Unreported order in the case of. Muhammad Ismail and another v. Karachi Building Control Authority and others (C.P.0 No,2548 of 1994). Agha Fakhruddin v. Muhammad Paryal and others (PLD 1989 SC 16). Buxton and others v. Minister of Housing and Local Government (1961(1) Queens Bench 278). Gregpry and another v. London Borough of Camden (1966(2) All ER 196). Jas Bhai Moti Bhai Desai v. Roshan Kumar, Haji Bashir Ahmed and others (AIR 1976 SC 578). 6.In the first case, it appears that after the construction of the disputed building had been made upto the 9th floor, objection to the construction was raised inter alia on the ground of violation of right of privacy of the petitioner who was residing at a distance of half kilometre from the offending construction and on such facts it was held that, "In these circumstnaces such question cannot be determined in these proceedings particularly as she is residing about half kilometre away." 7.In the second order, the observation relied upon is that, "in order to successfully maintain a Constitution petition the petitioners must show that their enjoyment of a right has been violated or infringed by some action of the respondents." 8.In the third case, the relevant observation is, "the mere fact that the proposed construction has been carried out in violation of the law or relevant rules is not sufficient to make the petitioner an aggrieved party as in such a case the dispute would purely be between the builder and the concerned authority under the said Ordinance." 9.In the case of. Agha Fakhruddin, the facts were that the petitioner challenged the allotment of land to the respondent mainly on the ground that, the plot was an amenity plot reserved for children park and, therefore, could not be granted by the Government for residential purpose and for construction of a medical clinic. However, on fact it was found that the plot was not an amenity plot, as claimed. It was inter alia held in the case that:-- "There is yet another aspect of the case which was examined by us and that was as to what was the locus standi of the appellants to challenge the transfer in favour of the aforesaid respondents when they had neither any perosnal interest in the property nor were applicants for the allotment. The appellants claimed to be neighbours and that the right asserted by them was in the nature of a right which they enjoyed with . all the other citizens of Sukkur. In other words they had claimed that they were acting pro bono publico, but even so their claim may have been justified if the plots in dispute were amenity plots reserved for children's park. Since this was not so the Provincial Government was entitled to dispose them of a either . for residential purpose or commercial purpose. The appellants were not applicants for these plots nor had they been made such a grant, hence they had no interest in the same, and therefore, had no locus standi in the matter to challenge the allotment in favour of the respondents." 10. The facts of the Buxton's case were that the Minister of Housing and Local Government allowed a company the right to develop certain land owned and occupied by it, whereupon the applicant whose land was adjacent to that of the company and was being used for agricultural and residential purposes, applied to the High Court to quash the decision of the Minister, on the ground that the proposed operations by the company would result in injury to applicant's land. The question in the case arose that as to whether the applicant is a person aggrieved within the meaning of statute. It has been observed that:-- "In my judgment, however, I am compelled to restrict the meaning of the words. 'person aggrieved' to a person with a legal grievance. Before the Town and Country Planning legislation any landowner was free to develop his land as he liked, provided he did not infringe the common law. No adjoining owner had any right which he could enforce in the Courts in respect of -such development unless he could show that it constituted a nuisance or trespass or the like."
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It has further been observed in this case, that:-- "Ever since the judgment of James, L.J. in the well-known case of In re Sidebotham, it has been generally accepted that the words person aggrieved' in a statute connote the person with a legal grievance, that is to say, someone whose legal rights have been infringed. James, L.J. said: 'the words 'person aggrieved' do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something." 11.In the second case from English jurisdiction, the facts were that at the back of the plaintiff's houses there was an open space forming part of the property of a convent. The convent was granted permission to erect a new school in the grounds and allowed a means of access to the new school at a place near the two houses of the plaintiff with the result that hundreds of pupils would pass very close to the plaintiffs houses using the said access. Accordingly, the plaintiff brought an action for declaration that the grant of permissions were ultra vires the defendant. On an objection about plaintiff's, right to seek such declaration it was held that:-- "Looking at it in that rather simple way, it seems to me that the answer to the question which I have to determine is that the plaintiffs have no legal right to step in at all. They may have suffered damnum, that is to sag, loss in one way or'another, but they have not suffered injuria, that is to say, any legal wrong. There are many acts which cause loss which give no legal rights. Before one can come to a Court of a law, one must suffer an injuria as well as damnum; one must have suffered a legal wrong as well as an actual loss of money or amenity or something else." 12.In the Indian case, the facts were that the District Magistrate granted to respondents Nos.1 and 2 a no objection certificate to the location of a cinema at a site. This certificate was granted on the direction of the Government. The appellant challenged the grant of the certificate mainly on the ground that the same had not been issued by the District Magistrate in the exercise of his own discretion but on the dictates of the State Government and, therefore, the grant lacked jurisdiction. A preliminary objection was raised with regard to the locus standi of the petitioner to maintain the petition. It was held, that:-- "In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a-legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore, he is not a 'person aggrieved' and has no locus standi to challenge the grant of the No Objection Certificate." 13.The unplanned, haphazard, mushroom growth of high-rise and multi-storeyed buildings in residential areas of Karachi without corresponding improvement in the amenities and services, like water, electricity, sewerage etc. is resulting in multifarious difficulties for the citizens; the residents of the area concerned, of-course, being the worst sufferers. Problems emerging from unchecked commercialisation of plots in residential areas by unscrupulous officials is assuming such alarming proportions that it no longer remains localised to the area, in greater or smaller degree, directly or indirectly it is affecting the public in general. The concept that person living in the immediate neighbourhood or very close proximity of an offending construction can alone be considered as aggrieved persons would no longer hold good in the peculiar situation prevailing in Karachi. 14.Here, as is apparent from the memo. of petition, some of the petitioners reside within the Ferere Town Quarters in which locality the offending building is being raised and as such they are concerned with and have interest in preventing such construction as may be in breach of rules. The petitioners have also challenged the action of the official respondents who have allegedly
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approved the plan in complete disregard of the rules and regulations and, have allowed construction in violation of the plan, rules and regulations. In the case of Multiline Associates v. Ardeshier Cowasjee (1995 SCM R 362) in somewhat similar situation on the objection about the locus standi of the petitioners in that case who were residing at far away places from the disputed construction it has been observed:- "For the facts and reasons and case-law on the subject of writ some locus standi as mentioned above, we find that even though petitioners shown to residing at distances far away from the building in dispute and one writ petitioner is shown to be residing in close proximity of the building in dispute and since the area is same, requirement of locus standi as contemplated under Article 199 of the Constitution is to have extended the scope as this case has characteristics of public interest litigation and the writ petitioners are probono publico. For such reasons, we hold that they could file the writ petitions and they had locus standi...." 15.In the case of Mst. Sardar Begum Farooqi and 6 others v. Mst. Rashida Khatoon and 2 others (1990 CLC 83) the relevant observation is that:-- It will suffice to observe that the above cases have no application to the present case, as observed hereinabove the petitioners are in fact enforcing the statutory duty cast upon the respondents 2 and 3. In this regard it may be pertinent to reproduce relevant portion from an unreported order dated 24-5-1989, passed by a learned Division Bench of this Court in the case of Abdul Wahid Butt v. Mrs. Asma and others in Constitutional Petition No,D-290 of 1989 while granting an ad-interim injunction against raising of unauthorized construction of the nature in issues:-- We cannot be unmindful of the fact that it has now become common practice in the Karachi City that unauthorised constructions in the form of multistoreyed buildings are being raised which affect neighbours and the other residents of the locality as the supply of water and electricity are affected. There seems to be a marked distinction between a right to Maintain a suit and a right to maintain a Constitutional petition. In the former case a plaintiff should have a legal right, whereas in the latter case a petitioner may not have perosnal legal right in stricto senso, but may have some interest in the subject-matter of the writ petition. In the instant -case as pointed out hereinabove the private respondents have raised and are still raising constructions in violation of the approved building plan and the building bye-laws. Respondent No,3 as a statutory functionary under the Sindh Building Control Ordinance, 1979 is under the statutory duty to ensure the compliance of the building bye-laws. It cannot be said that the petitioner has no interest in ensuring that respondent No,3 discharges the above statutory duty. One of the prayers in the petition is that respondent No,3 be directed to demolish unauthorised constructions put up by the private respondents. We, therefore, are of tentatively view that prima facie the petitioner has locus standi to maintain above position. We are also inclined to hold that it is a fit case, in which a prohibitory interim injunction should be granted." 16.Thus, it would appear from the recent trend of the pronouncements of the Superior Courts that for maintaining a petition under Article 199 of the Constitution all that has to be shown is that the petitioners have an interest in the subject matter which may not, necessarily, be a right as such in the stricto senso. As mentioned above, in the present case, some of the petitioners are residents of the same areas and have interest in the maintenance of the area as residential. Another reason why the petitioners have a right to maintain the petition is that the petitioners have also challenged the construction on the ground of it having encroached upon the proposed width of the main Clifton Road and, therefore, every citizen who may at one time or the other happen to use that road would be directly affected by such encroachment for this would result in the narrowing down of the road. For all the aforesaid reasons, we consider that the petitioners have locus standi to file the present petition. 17.Maintainability of the petition was challenged also on the ground that the earlier mentioned
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Suit No,55 of 1996 filed by respondent No,16 against sixth respondent was still pending in this Court, and therefore, this petition in respect of the same subject-matter was not maintainable and that the petitioner could join that suit to agitate their grievances. Aid for the proposition was sought from the case of Abdul Karim v. Additional Commissioner (R) Multan and others (1986 CLC 2403) and Mst. Hajiani Khatija Bai and 9 others v. Karachi Building Control Authority (KMC) and 3 others (1997 M LD 852). 18.The petitioner in the first case had challenged through a Constitution petition the orders of the Revenue Courts directing his eviction from some land. It, however, transpired that earlier he had filed a suit too against his eviction which was pending, but, this fact was suppressed in the petition. On these facts the petition was found to be unwarranted as the relief claimed in the petition was dependent on the findings in the suit. 19.In the other case the petitioner sought demolition of an unauthorised building, however, prior to the filing of the petition the owner of the building had instituted a suit in the Court of the Senior Civil Judge, Karachi and-obtained an order for the maintenance of status quo. In the above circumstances it was considered by the learned Judges of this Court that, "in presence of said order, which is passed by a competent Court, no order can be passed in the present matter" and that, "the present petitioner, if aggrieved by the said order of the VIth Senior Civil Judge, South, Karachi, could have filed an appeal as laid down in the case reported in PLD 1969 SC page 65 (H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd. Karachi and another) or to have joined as party in the said and could seek vacation of the said order". 20.Both the cases are distinguishable from the instant petition on facts. Here neither the petitioners instituted any suit in respect of the same subject matter nor any order exists so as to impede the passing of appropriate orders in this petition. 21.There is no gainsaying that the suit filed by respondent 16 against respondents 5 and 6 in respect of the disputed construction is pending on the original side of this Court, but, it apparent from its plaint that the same was filed in altogether different context. There the respondent No,16 seeks to restrain the sixth respondent from sealing or demolishing the construction which according to them was being raised in conformity with the rules and regulations while in the present petition several controvercial issues have been raised, such as, conversion of the plot from residential to commercial, approval of plan in violation of statute, rules and regulations, encroachment of road etc. Thus, the controversy involved in the present petition has much wider range than that in the said suit. Moreover, having regard to the purpose of that suit, the reliefs claimed therein and the averments made in the plaint, perhaps the petitioners would neither be necessary nor proper parties to the suit, for, most of them do not have "personal legal right in strito senso", but, they do have some interest in the subject-matter of the petition. Reference may be made to the following observation in the case of Mst. Sardar (supra), "There seems to be a marked distinction between a right to maintain a suit and right to maintain a Constitutional petition. In the former case a plaintiff should have a legal right, whereas in the latter case a petitioner may not have personal legal right in stircto senso, but may have some interest in the subject-matter of the writ petition." 22.Having said that much on the maintainability of the petition, we now pass on to, the first contention of Mr. Naimur Rehman, pertaining to the commercialisation of the plot in question. It was submitted that under the original planning of the city, the Frere Quarters area was purely a residential area where construction was allowed only upto two storeys. Now by reason of the conversion of the said plot from residential to commercial and approval of plan for raising multi- storeyed building thereon the residents of the area would be put to immense inconvenience and the resultant strain on the amenities like water, electricity, gas, sewerage line would adversely affect the residents. It was stressed that, conversion of plots from residential to commercial or
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gran( of permission for construction of multi--storeyed commercial building in residential areas was contrary to good organised town planning. Reference was to following passage from Encyclopaedia Britannica -- "Goals of modern urban planning. The ultimate goals had always been social, even during the period when city plans themselves related only to physical change. They had been and continued to be deeply involved with intermediate economic objectives. The expression of the goals was of course coloured by the culture of the society seeking them. Of increasing weight was the goal of equality of opportunity and tha redress of the grievances of disadvantage minorities. Within this value system the physically oriented urban planning of the first half of the 20th century had evolved a set of environmental objectives that continued to be valid: (1) the orderly arrangement of parts of the city --residential, business, industrial -- so that each part could perform its functions with minimum cost and conflict; (2) an efficient system' of circulation within the city and to the outside world, using to the maximum advantage all modes of transportation; (3) the development each part' of the city to optimum standards, in terms of lot size, .sunlight, and green space in residential areas, and parking and building in business areas; (4) the provisions of safe, sanitary and comfortable housing in a variety of dwelling types to meet the needs of all families; (5) the provision of recreation, schools, and other community services of adequate size, location and quality; (6) the…
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