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Petitioner: ARDESHIR COWASJEE, KARACHI and 4 others VS Respondent: Messrs MULTILINE
Court Name: Sindh High Court Judge(s): Mamoon Kazi, Ahmed Yar Khan Title:ARDESHIR COWASJEE, KARACHI and 4 others vs Messrs MULTILINE
JUDGMENT
Reported As: PLD 1993 Karachi 237 Result: Order accordingly Judgment JUDGMENT ' MAMOON KAZI, J.---The petitioners reside in Frere Town Area of Karachi where the respondent No,1 a partnership firm, has been permitted by Karachi Building Control Authority, the respondent No, 2, to build a multistoreyed building consisting of nine floors besides the ground floor, on plot bearing Survey No,18, Survey Sheet No, F.T.-3, in the name of "Spring Field Apartments". 2. The respondent No,1 had originally sought approval for construction of eleven storeys on the said plot, however, as the said respondent had requested for a plot ratio of .1:4 against the ratio of 1:2, permitted by the Karachi Buildings and Town Planning Regulations (hereinafter referred to as "the Regulations"), the Director General, K.D.A. Objected to the construction of the said building. Nevertheless, on the 2nd October, 1990, the respondent No,2, approved the first respondent's plans for construction of the building with minor modifications. However, the approval was made subject to permission by the Karachi Metropolitan Corporation. 3. Thereafter, the respondent No,1 approached the Karachi Metropolitan Corporation for permission but the same was declined as, only ground floor and two upper storeys were permissible on the said plot. The proposed construction, was also objected to on the ground that it would badly disturb the structure of services such as, water drainage, electricity and sui gas. However, the respondent No, 1 started construction on the said plot notwithstanding the said objections or protests made by the residents of the area. 4. But on 14-8-1990 a general order was issued by the Government of Sindh purportedly in exercise of its powers under subsection (5) of section 6 of the Sindh Buildings Control Ordinance, 1979 whereby all the building plans and No-Objection Certificates approved or issued between 1-12-
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1988 and 5-8-1990 for construction of high-rise buildings had been cancelled with immediate effect. 5. The said order was challenged by the respondent No,1 in the Civil Court, but during its pendency the former succeeded in obtaining a favourable order from the then Chief Minister of Sindh on 21- 8-1991 as he recommended that the case of the said respondent be processed as a "special case". 6. Thereafter, on 27-10-1991, the building plans of the respondent No,1 were approved after the respondent paid charges of Rs, 10,26,365 to the concerned authorities. In the meanwhile, the suit filed by respondent No, 1 against the respondent No,2 was also withdrawn. 7. The petitioners are aggrieved because the respondent No,1 was proceeding with the construction in absolute contravention of the Regulations and the respondents Nos. 2 and 3 were collaborating with the said respondent in the said unlawful act. 8. The case on behalf of the petitioners has been argued by Mr. Naimur Rehman whereas Mr. S. Sharifuddin Pirzada has addressed us on behalf of the respondent No,1. The learned Counsel was assisted by Mr. J.H. Rahimtoola and Mr. Ismail Merchant. Mr. Iqbal Memon and Mr. K.M. Nadeem have appeared on behalf of the respondents Nos.2 and 3 respectively. However, they have not addressed us on the questions involved in the case but have adopted the arguments advanced by Mr. Pirzada. 9. The main contentions of Mr. Naimur Rehman have been that, relevant provisions of the said Regulations have been flagrantly violated by respondents Nos.2 and 3 as permission has been granted to respondent No, 1 to construct nine floors besides the ground floor against two plus ground floor, permitted by the Regulations in Frere Town Area. The said respondents have also permitted other deviations from the said Regulations and the building plans as originally approved, as compulsory open space was permitted to be occupied by the said construction. Even approval of the Karachi Metropolitan Corporation, the lessor of the plot in question, was not obtained by the respondent No,1. Article 14 of the Constitution which guarantees privacy of home, has also been violated by the respondents. Mr. Naimur Rehman has further argued that no prior notice was served upon the residents of the area by the respondents Nos.2 and 3 without which no major alteration in the Regulations could be lawfully permitted by them. Furthermore, according to the learned Counsel, procedure prescribed by clause 4(a) embodied in Schedule D to Part-II of the said Regulations was also not followed by the said respondents. The learned Counsel has also called in question the order passed by the then Chief Minister, dated 21-8-1991, whereby approval was accorded to the building plans submitted by the respondent No,1. In the first instance, the Chief Minister had no lawful authority to grant such approval in clear violation of the Regulations, and secondly, in any case discretion was not properly exercised by him. 10. Although there appears to be no controversy in regard to the fact that, major deviation from the said Regulations was permitted by respondents No,2 and 3, but the contention of Mr. Sharifuddin Pirzada has been that construction of the building in question has been permitted under the orders of the respondent No,3 which is a competent authority in this regard. Although deviations have been permitted and irrgularities have been committed by the respondent No,1, but the same, accordingly to the learned Counsel, can be lawfully compounded by respondents No, 2 and 3 with the said respondent. The Karachi Metropolitan Corporation, the lessor of the plot, has also waived its objection during the pendency of the petition. As regards the alleged violation of Article 14 of the Constitution by the respondent No,1, it has been argued that, the said Article cannot be pressed into service by the petitioners as no violation of any fundamental right is involved in the present case. Reference in this regard has been made to the case of Mst. Zubaida v. Messrs Pakistan State Oil House (C.P. No, D-210/91), decided on 26-2-1991 by a Division Bench of this Court, wherein it was held that right of privacy was not available to the petitioner who was living at a distance of about help a kilometre from the proposed multistoreyed building. As regards the alleged infractions of
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the provisions of clause 4(a) in Schedule D to the said Regulations, the contention of Mr. Pirzada has been that the plot in question was a residential plot and continues to be so, therefore, there being no question of conversion of the plot from residential to commercial, the said clause cannot be invoked in the present case. There was also no question of violation of any principle of natural justice because discretion has been exercised by the authorities fairly and properly. An objection has also been raised by the learned Counsel as to the maintainability of the present petition as the same, accordingly to the learned Counsel, suffers from laches. In the end, it was argued that the petitioners have no locus standi to file the petition as they are not aggrieved persons within the meaning of Article 199 of the Constitution. 11. In support of his last contention. Mr. Sharifuddin Prizada has pointed out that none of the petitioners resides in the close vicinity of the site of the property in question. Consequently, none of them has either any right to privacy or anyone of them is an "aggrieved party" so as to claim locus standi to file the present petition. 12. It is pertinent to point out in this connection that, there appears to be no controversy in regard to the fact that all the petitioners reside in the Frere Town Area where, as pointed out earlier, the proposed building is being constructed. On behalf of petitioners No 3 to 5, it has been contended that they reside on the same road on which the building in question is situated 'and any violation of the said Regulations would affect all the petitioners equally. 13. The question as to locus standi of a person to challenge violation of housing scheme or regulation by a Constitutional petition was considered by the Supreme Court of Pakistan in the case of Mian Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223. In this, case question arose, whether the petitioner had a right to object to an alteration made in a town planning scheme framed by the Lahore Improvement Trust simply on account of the reason that, the petitioner was a resident of the same area where the alteration had taken place. It was held that although the petitioner did not have a right in the strict juristic sense to maintain a writ, but it would be enough for the petitioner to disclose that he had a personal interest in the performance of a legal duty which, if not performed or performed in a manner not permitted by law, would result in loss of some personal benefit or advantage to the petitioner. It was further held that alteration of the said scheme had resulted in deprivation of the facility available to the petitioner and consequently, a valuable right was conferred on the petitioner to maintain a writ petition. 14. Although this case appears to provide a complete answer to the objection raised by Mr. Sharifuddin Pirzada, but the contention of the learned Counsel is that the ratio laid down by the Supreme Court in Fazal Din's case is not applicable to the present case as in the said case the plot in question was an amenity plot. According to the learned Counsel, writ jurisdiction of the High Court cannot be invoked by a professional litigant or a "meddlesome interloper" in matters that do not concern him. Reliance has been placed by Mr. Pirzada on De Smith's Judicial Review of Administrative Action (4th Edn.), where at page 409, the rule has been stated thus: "All developed legal systems have had to face the problem of adjusting conflicts between two aspects of the public interest -- the desirability of encouraging individual citizens to participate actively in the enforcement of the law, and the undesirability of encouraging the professional litigant and the meddlesome interloper to invoke the jurisdiction of the Courts in matters that do not concern him. The English common law dealt harshly with those who maintained others to institute civil proceedings in which they themselves had no direct interest: ad se non pertinent. (co. Inst. Ii, 208)" ' Similar view has been expressed by the learned author at page 418 which is as follows:-- "Whereas most of the cases on prohibition have arisen out of proceedings originally instituted before Courts strict sensu, the locus standi required of an applicant for certiorari has often arisen in the general field of administrative law. But most of the decisions have failed to provide a full
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exposition of the relevant principles and many of the dicta are ambiguous. It is not even clear how far the rules relating to prohibition are applicable to certiorari. ' There are numerous dicta to the effect that a "strange' may be awarded certiorari. On the other hand, there is no reason for doubting the soundness of Lord Denning's observation that the Court "would not listen, of course, to a mere busybody who was interfering in things which did not concern him"; and in no reported English case has an application brought by such a person been successful. It is thought that the present law may properly be stated as follows. Certiorari is a discretionary remedy, and the discretion of the Court extends to permitting an application to be made by any member of the public. A person aggrieved, i,e, one whose legal rights have been infringed or who has any other substantial interest in impugning an order, may be awarded a certiorari ex debito justified if he can establish any of the recognised grounds for quashing; but the Court retains a discretion to refuse his application if his conduct has been such as to disentitle him to relief. Only in highly exceptional circumstances would the Court exercise its discretion in favour of an applicant who was not a person aggrieved." ' Reference has also been made by Mr. Pirzada to "LOCUS STANDI AND JUDICIAL REVIEW" by S.M. This, where the learned author at page 98 has observed as under:-- "The Court will not listen, of course, to a mere busybody who was interfering with things which did not concern him. But it will listen to anyone whose interests are affected by what has been done just as it did in Greenbaum's case." ' It has again been observed by the said learned author at page 99 of the said book: "It is interesting to note that both the New Zealand and Malaysian Courts have required a certiorari applicant to be an aggrieved person -- in Walsh v. Social Security Commission (1959) N.Z.L.R. 1113 the New Zealand High Court denied a husband standing to challenge an order of the defendant commission, granting the applicant's wife a deserted wife's benefit on the ground that he had failed to establish that his personal or private rights--and not merely his general interest as a member of the public--had been affected. ' In District Council Centre, Province Wellesley v. Uegappah (1966) 2 M.L.J. 177 the Malaysian High Court denied a land owner standing to apply for certiorari to quash an order of a Municipal Council approving certain building plans for a housing scheme on adjacent land. ' The Privy Council has also joined the ranks of those cases imposing a stricter interest requirement in certiorari applicants by its decision in Durayappah v. Fernando (1967) 2 A.C. 337. However, it added a new dimension to the locus standi problem by introducing the distinction between void and voidable decisions; a voidable decision being avoidable by one against whom the decision was made and a void decision by any person with a legitimate interest. This rules out the institution of review proceedings by strangers even where there is a total want of jurisdiction 15. However, in Regina v. Paddington Valuation Officer ex parte Peachey Property Corporation Ltd. (1966) 1 Q.B. 380 Lord Denning appears to have taken a more liberal view. It was observed by him that:- "The question is whether the Peachey Property Corporation are `persons aggrieved' so as to be entitled to ask for certiorari or mandamus. Mr. Blain contended that they are not persons aggrieved because, even if they succeeded in increasing all the gross values of other people in the Paddington area, it would not make a pennyworth of difference to them.... But I do not think grievances are to be measured in pounds, shillings and pence. If a ratepayer or other person finds his name included in a valuation list which is invalid, he is entitled to come to the Court and apply to have it quashed. He is not to be put off by the plea that he has suffered no damage, any more than the voters were in Ashby v. White. The Court would not listen, of course, to a mere busybody who was interfering in things which did not concern him. But it will listen to anyone whose interests
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are affected by what has been done So here it will listen. To any ratepayer who complains that the list is invalid'. ' This was afterwards approved by the House of Lords in Arsenal Football Club v. Ende (1977) 2 WLF 974. (Also see Discipline of Law, by Denning, pp. 115 & 116)." 16. However, a somewhat different view was taken by the Queens Bench Division in Gregory and another v. London Borough of Camben (1966) 2 All. E.R. 196. The plaintiffs in this case were the owners and occupiers of two houses at the back of which was a large open space forming part of the grounds of a convent. The defendants, the Local Planning Authority, granted planning permission to the trustees of the convent to erect a large new school in the convent grounds and, later for a second means of access to which would have probably affected amenities of the plaintiffs' houses, as many hundreds of pupils might have used such access and passed close to them. The plaintiffs brought an action for a declaration that the grants of planning permission were ultra vires the defendants' powers. On a preliminary issue, whether the plaintiffs had a right to ask for the declaration it was held that they had no status to claim as against the defendants' declarations that the grants of planning permission were ultra vires. For what was taking place on the land behind plaintiffs' houses was something in regard to which, as bey/teen the plaintiffs and the trustees of the convent, there were no legal rights. 17. Mr. Pirzada while referring to the case of Shri Sachidanand Panday v. The State of West Bengal AIR 1987 SC 1190 has pointed out that, even in neighbouring India, which was the first to open its doors to public interest litigation, a need is now being felt to arrest unrestricted flow of cases under the said system. The learned Counsel has referred to the following observations made by the Supreme Court of India in this regard: "58. My purpose in adding these few lines of my own is to highlight the need for restraint on the part of the public interest litigants when they move Courts. Public interest litigation has now come to stay. But one is led to think that it poses a threat to Courts and public alike. Such cases are now filed without any rhyme or reason. It is, therefore, necessary to lay down clear guidelines and to outline the correct parameters for entertainment of such petitions. If Courts do not restrict the free flow of such cases in the name of Public Interest Litigation, the traditional litigation will suffer and the Courts of law, instead of dispensing justice, will have to take upon themselves administrative and executive functions. 59. I should be not understood to say that traditional litigation should stay put. They have to be tackled by other effective methods, like decentralising the judicial system and entrusting majority of traditional litigation to village Courts and Lok Adalats without the usual populist stance and by a complete restructuring of the procedural law which is the villain in delaying disposal of cases. 60. It is only when Courts are apprised of gross violation of fundamental rights by a group or class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the Courts, especially this Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. I will be second to none in extending help when such help is required. But this does not mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self-imposed restraint on public interest litigants." 18. Mr. Naimur Rehman, learned Counsel for the petitioners has however, contended that the traditional view taken by the Courts in regard to the expression "aggrieved person" cannot be invoked where the petitioner has sought enforcement of a fundamental right or where, there is an element of public importance in the case. The fundamental right which, according to the learned Counsel, has been infringed in the present case, is guaranteed by Article 14 of the Constitution which lays down that "the dignity of man and, subject to law, the privacy of home, shall be
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inviolable". Support has been sought by the learned Counsel firstly from the case of Miss Benazir Bhutto v. Federation of Pakistan and another, reported in PLD 1988 SC 416. An objection was taken in this case that the rights which could be enforced by the Court must ordinarily be the rights of the petitioner himself who claims infraction of those rights and approaches the Court for relief. The objection was, however, overruled and some of the observations made by the Court while overruling the objection which appear at page 483 of the report are as follows:-- "Here I may refer to a case reported as Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223, wherein it was held that the right considered sufficient is not necessarily a right in the strict juristic sense but it is enough if the petitioner discloses that he had 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 the curtailment of a privilege or liberty or franchise. There is thus, a departure from the earlier rigid notion of a legal right to exist as a pre- condition for maintaining the application for Constitutional redress." ' Again, at page 486 it has been further observed: "Another important question mooted for consideration is as to whether the requirement of an "aggrieved party" is spelt out from Article 184 (3) of the Constitution. The submission of the learned counsel for the petitioner was that the word "aggrieved" does not find mention in this sub-Article, and, therefore, it cannot be read into it while that of the learned Attonery-General was that the jurisdiction conferred on the Supreme Court under Article 184(3) is co-terminus with that bf Article 199 which by its sub-Articles 1(a) and 1(c) envisaged the application to be made by an "aggrieved party" and that this requirement should also be read into Article 184(3). In support of his contention, the learned Attorney-General relied on Ch. Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66, Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657 and Charanjit Lal Chowdhury v. The Union of India and others AIR 1951 SC 41." ' In the result, it was concluded by the Supreme Court as under:-- "Taking the discussion further, this Article does not say as to what proceedings should be followed, then whatever be its nature must be judged in the light of the purpose, that is, the enforcement of any of the Fundamental Rights. It is, therefore, permissible when the lis is between an aggrieved person and the Government or an authority to follow the adversary procedure and in other cases where there are violation of Fundamental Rights of a class or a group of persons who belong to the category as afore stated and are unable to seek redress from the Court, then the traditional rule of locus standi can be dispensed with, and the procedure available in public interest litigation can be made use of, if it is brought to the notice of the Court by the person acting bona fide. On the language of Article 184(3), it is needless to insist on a rigid formula of proceedings for the enforcement of the Fundamental Rights. If the framers of the Constitution had intended the proceedings for the enforcement of the Fundamental Rights to be in a strait-jacket, then they would have said so, but not having done that, I would not read any constraint in it. Article 184(3) therefore, provides abundant scope for the enforcement of the Fundamental Rights of an individual or a group or class of persons in the event of their infraction. It would be for the Supreme Court to lay down the contours generally in order to regulate the proceedings of group or class of actions from case to case." ' The same appears to be the ratio of another judgment of the Supreme Court in I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041. 19. Mr. Sharifuddin Pirzada has, however, pointed out that the right of privacy guaranteed under Article 14 of our Constitution is comparable to similar provisions embodied in Fourth Amendment to the American: Constitution which guarantees inviolable right of the American people to be secure in their houses. Reference in this regard has also been made to Irish Constitution which equally protects such right of the citizens by laying down that "the dwelling of every citizens is inviolable".
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However, Article 14 of the Constitution has been interpreted by our Courts as also embodying within itself the Islamic concept of purdah. Reference in this respect may be made to Suleman Mala v. Karachi Building Control Authority (1990 CLC 448), Akhtar Hamid Ghori v. Messrs Saima Estate Developers (1989 CLC 2173) and Mst. Sardar Begum Faruqui v. Rashida Khatoon (1980 CLC 83). The Islamic concept of privacy of home is embodied in the Holy Quran, in Surah An-Nur, verses 27 and 28. In the said verses it has been ordained: "27. 0 ye who believe: ' Enter not houses other than ' Your own, until ye have ' Asked permission and saluted ' Those in them: that is ' Best for you, in order that ' Ye may heed (what is seemly). 28. If ye find none ' In the house, enter not ' Until permission is given ' To you: if ye are asked ' To go back, go back: ' That makes for greater purity." (See THE HOLY QUR'AN by Abdullah Yusuf Ali). ' Allama Yusuf Ali while commenting upon the Islamic concept of privacy of home, with reference to the above verses, has observed…
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