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Petitioner: WAFI ASSOCIATES (PVT.) LIMITED VS Respondent: FAROOQ HAMID and others
Court Name: Supreme Court of Pakistan Judge(s): Javaid Iqbal, Muhammad Sair Ali, Raja Fayyaz Ahmad Title: WAFI ASSOCIATES (PVT.) LIMITED vs FAROOQ HAMID and others Case No.:Civil Review Petition No,79-L of 2007 and Civil Miscellaneous Application
JUDGMENT
Reported As: 2010 SCMR 1125 Result: Petition dismissed Judgment JUDGMENT ' RAJA FAYYAZ AHMAD, J.--- This Civil Revision Petition has been directed against the order dated 6- 8-2007 passed by this Court in the proceedings commenced during hearing of CPLA No,533-L of 2006 in Suo Motu exercise of the powers, for the detailed reasons to be given later in view of the categoric statement made by the learned Sr. Advocate Supreme Court on the instructions received from the Builder present in the Court to the effect that the owner shall himself remove the 11th Floor of the above-named multistoreyed plaza, accordingly he was allowed three months' time for the purpose. The project has been named and known as 'Big City Plaza' situated at Plot No,3-Block-E-III, Gulberg-III, Lahore. The short order passed by this Court reads as under:--- "(16) For detailed reasons to be given later in view of the construction of the eleventh floor being in complete violation of law, the learned Sr. Advocate Supreme Court for the builder on instructions received from the builder, present in Court, submits that the owner shall himself remove the said floor. He is allowed three months time for the purpose. (17) After the removal of the said eleventh floor upwards steps shall then taken to have the structure stability examined and also to examine any other violation of law committed by the owner. Re-list." 2. The precise relevant facts culminating into passing of the above order are that one Farooq Hamid and others in CPLA No,553-L of 2006 filed a suit for declaration, perpetual injunction and damages alleging that the project which is the subject matter of the petition i,e, the `Boulevard Heights' is violative of the LDA Building Regulations as the mandatory requirements for construction of the said project have not been met for instance, without soil testing the work is being carried out
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without proper piling as designed by the Structural Engineer of the said project. The work on the said site has been commenced in violation of the original design submitted by the Builders/Structural Engineer Mr. Zia-ud-Din Mian who issued the Structural Stability Certificate dated 5-9-2004 and was withdrawn for the following reasons:-- "That at this stage it has come to my knowledge that the owners of the building, instead of the plans vetted and signed by me, submitted some other plans which were not even shown to me to the LDA and got the plans approved merely on the basis of the certificate issued by me. ' That the owners have since long started the construction without following the design vetted by me. ' That the owners or the builders never bothered to inform me at any stage of construction to check the quality construction viz-aviz. Design vetted by me. ' That under the circumstances I am regretfully constrained to disassociate myself from the structural stability certificate and wish to withdraw the same." 3. The learned counsel for the petitioner in C.P.L.A. No,533-L of 2006 submitted that as per above- referred report of the Structural Engineer, the petitioner's house located adjacent to the project has developed serious cracks rendering the petitioner to leave the said house for safety of the inmates and thus; shifted to some other building." The learned counsel further submitted that not only the said project is being constructed in violation of the Building Regulations of the LDA but also the law laid down by this Court in the case of Ms Shela Zia and others v. WAPDA PLD 1994 SC 693 has been violated . After hearing the learned counsel following order was passed by this Court on 18-4-2006. "(5) The afore-referred concerns and contentions have not been specifically adverted to by the Courts below. However, since it is a huge project having potential for economic development and the construction is on, before issuing notice to the private respondents, we would like to direct Regulatory Authority i,e, the Director General, Lahore Development Authority to file a concise statement specifically adverting to the afore-referred concerns and issues along with expert opinion of the Director Town Planning. The report shall be submitted by or before the next date of hearing. Learned Advocate General, Punjab shall also personally appear to assist the Court. (6) Adjourned to 25-4-2006" 4. On the date fixed in the matter notice was directed to be issued to all the respondents except respondents Nos.1 to 4 already been represented by the Legal Advisor for the LDA. It appears that notices issued to respondents Nos.6 and 7 (Zia-ud-Din Mian, Consulting Engineer, University of Engineering and Technology, Lahore) could not be served and the matter was adjourned to 2-5- 2006 with the direction that notices be served by the LDA on unserved respondents to whom notice be issued by courier service. The matter was partly heard on 2-5-2006 and on the request of the learned Advocate Supreme Court for the private respondents adjourned to 3-5-2006, on which date the Director General, LDA and the concerned Officer Incharge of the LDA dealing with such like buildings and constructions were directed to appear in person, with complete record. 5. On subsequent date i,e, 17-7-2006 this Court during the course of hearing of the matter observed a horrifying picture of the performance of the concerned Authorities of the LDA in the light whereof this Court was inclined to take action against the delinquent concerned officers but the then DG sought time to look into the matter himself and take appropriate action and remedial measures as well. After having heard the parties' learned counsel, respondent No,7 (Zia-ud-Din Mian) and the material brought on record, a detailed order reproduced hereinbelow as passed by this Court on 19-7-2006:-- "(1) Claiming to be owners of a house bearing No,19-K of Block-B of Gulberg-II, Lahore, the petitioners filed a suit in the Court of the learned Senior Civil Judge at Lahore alleging that Pervaiz Hussain respondent who was the owner of the adjacent Property bearing No,11-K of Gulberg had started constructing a multi-storeyed shopping-cum-residential plaza at the said site under the
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name of 'Boulevard Heights', that the excavation done by the said respondent in the plot in question had led to a severe lateral movement of the ground under the petitioner's house towards the excavated site which had caused cracks and consequent serious damage to the petitioner's said property; that the said respondent No,6 had started the said construction without any legal and bona fide sanction for the said purpose; that the piles constructed by the said respondent in the excavated site were faulty as the same did not offer the requisite retaining strength which could resist the lateral soil pressure of the ground underneath the petitioners' house and the said multi-storeyed plaza was being constructed also in violation of mandatory provisions of Regulations No,9(iii), 42, 66(d) (iv) and 81 of the Buildings Regulations of the Lahore Development Authority as also in violation of the provisions of section 12 of the Pakistan Environmental Protection Act of 1997. It had been consequently prayed, inter alia, that it be declared that the sanctioning of the said building's plan was collusive and illegal and that the excavation in the plot in question was in serious violation of law and was a serious threat to the lives and the property of the petitioners and of others. A permit injunction was consequently sought restraining the said respondent from undertaking any further excavation and construction at the site in question and a decree was also prayed directing the said respondent to pay damages to the petitioners in the sum of Rs,109,000,000. Along with the said suit the petitioner had also filed an application for the grant of a temporary injunction in the above-mentioned terms. (2) Through an order dated 28-11-2005 the learned trial Judge refused to order stoppage of the construction in question at the said site but directed the respondent builder and the respondent LDA to ensure protection of the property and the lives of the petitioners. Feeling dissatisfied with the order, the petitioners approached the Lahore High Court through FAO No,324 of 2005 which appeal was dismissed through the impugned order dated 17-2-2006. (3) Hence this petition. (4) We have heard the learned Advocate Supreme Court for the petitioners at some length. We have also had the benefit of the assistance from the learned Advocate Supreme Court for the LDA as also of the learned Advocate Supreme Court representing the builder i,e, respondent No,6. (5) The site in question where the said building is being constructed adjoins the house of the petitioners on one side and the main Boulevard of Gulberg Lahore, on the other. The plan of the builder is to construct 17 storeys above the ground comprising shopping arcades and residential apartments etc. And to cater for the parking requirements of the occupants and of the users of the said building, he also intended to construct four under-ground basements as parking lots. This necessitated digging at the site in question upto around 50 feet below the ground level. The builder claims to have taken steps i,e, construction of piles etc. To provide support to the adjoining areas on all sides despite which, it is not denied that some damage had not caused to the property of the petitioners. It is also a fact admitted on all sides that the LDA had sanctioned the building plan of the building in question but only upto the ground level in the first instance though it is alleged by the petitioners that said sanction was collusive and illegal. (6). The last two decades had witnessed a new culture in the city of Lahore i,e, construction of high- rise comprising of shopping complexes, residential apartments and even cinema-houses etc. The main Boulevard of Gulberg, for instance, which was once a purely residential area appears to have become a focus of multi-storeyed commercial buildings. Each residential plot on the said main Boulevard comprised of 8 to 10 Kanals of land wherein 10 to 15 persons including the owner and the servants resided. Presently, on each such plot, multi-storeyed buildings have been and are being built which are used by hundreds of persons every day i,e, the ones living there and the ones visiting the shopping arcades etc. Provided therein. Needless to say that such a huge multiplicity of users of each of the said plots is likely to cause problems of immense magnitude, inter alia, in the matter of capacity of roads catering for the resultant traffic; the parking space for the vehicles
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being used by the said users the availability of adequate water supply catering for such a large number of persons; the capacity of sewerage facilities for draining the water and the sewage caused by such users and so on. Before the advent of this new are of multi-storeyed plazas, single storeyed or at the most two storeyed houses existed on said plots which were used by the ones constructing them or the tenants inducted therein. On account of the comparatively small nature of the construction raised and smaller number of individuals using the same, the structural stability of the said houses was never a serious issue. (7). The present situation, however, is that an investor/builder constructs a multistoreyed high-riser; generally sells the shops and the residential apartments to the public and then disappears. The constructions so raised and sold are then used, as have been mentioned above, by hundreds of people. Any weakness in such a huge structure and any lapse in the structural designs or the quality of the same could endanger not only the lives of the ones using the said building but also of those in the adjoining properties and areas besides causing threat to the said adjoining properties themselves. We went through the Buildings Regulations framed by the Lahore Development Authority as amended from time to time which do make some provision for ensuring the said structural stability of such-like building and of the quality of construction. But during the course of proceedings, we were horrified to notice the required supervision and the control to be carried out and exercised by the Lahore Development Authority was completely absent which was criminal neglect of duties on the part of the concerned officials in the LDA. (8) The provisions of Pakistan Environmental Protection Act of 1997 demand environmental impact assessm ent of each such project before any plan for the construction of the same could be sanctioned. The LDA Authorities seem never to have complied with the said provisions. Regulations Nos.66 and 81 of the above-mentioned Regulations envisage soil investigation of the site where a multi-storeyed building was to be raised to find out whether the soil could take the load intended to cause on the time. There is no evidence before us that the LDA Authority ever demanded any such investigation before sanctioning the building plan of any such high-rise structure. The builder of any building comprising three storeys or more was required to employ a Structure Engineer to do the structural design for such a building to ensure stability of the same as per Regulation No,9 (iv) and such Structure Engineer was not only required to certify the stability of such a structure but also to personally visit the same at various stages of the construction and to certify that the construction was being raised to his satisfaction and in accordance with the design. This was the requirement of Regulation 14(iv) of the said Regulations. As per Regulation No,42, any excavation more than 14 feet deep was required to be inspected the Building Inspector of the LDA at least once a week in addition to which he was also required to carry out an inspection whenever there was a change in weather conditions. (9) We were surprised to find that the LDA never cared to ensure compliance of any such mandatory requirements. (10) So far as the building in question is concerned, it was the case of the respondent owner that the plan submitted by him to the LDA had been sanctioned upto the plinth level; that he was thus not carrying out any construction without a sanctioned building plan; that Dr. Zia-ud-Din Mian had been engaged by him as the Structure Engineer who had done structural designing of the said building and had certified its stability; that after the said Dr. Zia-ud-Din Mian had disassociated himself from the said project, he had hired Dr. Javed Younis Upal as the Structure Engineer who had also certified the structural stability of the construction being done at the site; that all the possible steps had been taken by him to ensure that no damage at all was caused to any of the adjoining properties and that if any such damage had, however, got caused then he was willing to compensate the affected persons from the same; that lie was the only builder who had provided four basements to cater for the parking of the vehicles of the persons likely to use the said building
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and finally that he had committed no illegality in the construction of the building in question and that in future also he, would continue to abide by all the laws regulating the subject. (11) As has been noticed above, the matter in hand does not remain confined only to the building in question being raised by respondent No,6 and is in fact a matter which concern the public at large and all the multi-storeyed buildings being constructed at least in the city of Lahore. On our call, the LDA has submitted a tentative list of more than one hundred buildings comprising of three storeys and more which were being constructed in various parts of the city of Lahore including the areas in the old city like Shah Alain Gate etc. This list submitted by the LDA is however not exhaustive and the number of such buildings could be much more. (12) The situation is alarming. Such a large number of multistoreyed high-rise buildings are being constructed all over the city without ensuring compliance of security measures; proper supervision and adhere to the law regulating the subject and the same are thus a serious hazard to the safety of the people and the properties. Since the Authority obliged to take steps in the matter has failed to do so, therefore, we feel compelled to take appropriate steps in the large interest of the public who have a constitutional right to the protection of their lives and properties. (13) Another dimension of his problem which stuck us was that, as has been mentioned above, investors/builders of such like buildings raise the construction; sell shops and residential apartments etc. To the public and then leave the area. More than one serious question, therefore, arise. The first question is as to what is which each of the hundreds of persons who purchase shops and flats etc. In such-like buildings, own? And in case, God forbid, any such building gets destroyed through some accident or Act of God, then what is that each individual who had lacs of rupees to own some such shops or flats in this building, if left with? The second question is how was such a huge structure and various expensive equipments and facilities which were common to all the users to be maintained e.g. The air-conditioning plant, electricity supply, the elevators, the common passage? (14) Having considered all aspects of the matter and having heard all concerned, we direct as under:-- (I) So far as the issue of the building in question i,e, 'Boulevard Heights' is concerned, it is ordered with the consent of all the parties that; (a) till further orders respondent No,6 shall not raise any construction beyond the plinth level but upto the said level, he will be at liberty to continue with the construction. (b) With consent of the parties and at their initiation, Messrs Mushtaq and Bilal, Consulting Engineers with their office at 302 Noor Estate, Sharah Faisal, Karachi are appointed as a commission who shall carry out a study of the project in question and then submit a report about the structural stability of the said buildings; about the quality control thereof and the material uses therein; about effectiveness of the strength of the retaining walls and the concrete structure in the basement and to assess the damage, if any, caused to the property of the petitioner located at 19- B Gulberg-II i,e, adjacent to the building in question and also to identify the causes leading to the said damage. (15) The LDA is directed to carry out a similar exercise with respect to the other multi-storeyed buildings being constructed in the city by hiring some duly qualified consultants who would also submit their report with respect to each of the said buildings including a report whether the same were being constructed in compliance with all the rules and regulations governing the subject including the compliance of the provisions of the Pakistan Environmental Protection Act, 1997. (16) We are surprised when we are told that no Structure Engineer is available in the LDA and that the construction of such like high-rise buildings was going on in the city in the absence of any such engineer being available with the regulatory body and supervisory authority i,e, the LDA. The LDA is directed to take immediate steps for the requirement of Structure Engineers at all levels in the
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authority through the Public Service Commission and till the said recruitment is finalized, they shall be at liberty to employ any duly qualified person for the purpose who shall carry out periodical inspections of the buildings in question in accordance with law. (17) The competent authority is also directed to take disciplinary action against the Chief Metropolitan Planner of the LDA, the Director Incharge of Town Planning in the LDA, the Director TIPA in the LDA, the Deputy Director (DP), the Assistant Director (DP) and the Buildings Inspectors etc. Who were obliged to ensure compliance of all laws in the matter of sanctioning of the buildings plans and ensuring the structural stability of the building in question and of other similar buildings and who had failed to do the same. Report of the action taken by the competent authority shall be submitted to this Court on the next date of hearing. (18) The Government of Punjab shall immediately consider initiation of steps for making laws regarding multiple ownership i,e, protection of the interests of the said occupants of such like high- rise buildings including the steps for providing an insurance cover for the said owners and the steps for maintenance of common facilities therein. The Zila Nazim of Lahore and the Director General of LDA shall also submit a report whether they had taken any steps to equip themselves to meet any emergent situations vis-a-vis such-like buildings in case of any fire or some such other accident or calamity affecting the same. (19) This petition shall now be set down for further hearing after summer vacations either at Lahore or Islamabad according to availability of the Bench." 6. The main case after summer vacations was re-listed before the Court on 19-4-2007 on which date for the given reason was adjourned to 26-4-2007 and again re-listed for 7-5-2007 for the reasons mentioned in the order of the Court. 7. On 11-5-2007 a detailed order was passed by this Court with the consent of all those present before the Court; a Commission was appointed by the Court to be manned as its Chairman and Convener Mr. Justice (R) Riaz Kiyani, a nominee of the Vice-Chancellor of the University of Engineering and Technology, Lahore from the field of Structure Engineering and Mr. Kamil Khan Mumtaz, the Town Planner and Engineer from the private sector. The order passed by this Court on 11-5-2007 reads as under:-- "(1) We have had the benefit of the assistance of the learned Advocate-General for Punjab, Malik Muhammad Qayyum, Advocate Supreme Court for the LDA with Mian Qamar-uzZaman, Legal Advisor, Mr. Mansoor Ali Shah, Advocate Supreme Court for the petitioners and Mr. Shahid Karim, Advocate Supreme Court for respondent No,6. We have also heard the submission made by the four Town Nazims of Lahore present on our call. (2). While hearing this matter in the month of July last year, we were horrified to notice that the Lahore Development Authority and other governmental agencies had allowed construction of high-rise buildings in the city of Lahore without following the laws regulating the subject as a result whereof these multistoreyed buildings had become a grave threat to the lives and properties not only of the people living, occupying or using the said buildings but also of multitude of others i,e, the neighbours, the visitors and even the ones passing by. The height of callousness and disregarded for human lives and properties shown by them as evident, inter alia, from the fact that not even a single structure engineer was available with the LDA who could have checked, supervised or ensured the structural stability of these structures. Nor had any steps even been taken by the LDA to check the bearing capacity of the soil where these were being raised. We had consequently passed an order on 19-7-2006 carrying some directions to be followed in the matter. The said order would be read as a part of this order. (3) On the last date of hearing, the Town Planning Officer of the LDA, however, informed us that the LDA was not the building control authority for the entire city of Lahore; that only a part of the said city was with them for the purpose and the major part of the city, for the said purpose, was with the
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Town Administration. This is why we asked for the appearance of four of the Town Nazims of the city of Lahore who are consequently present and have been heard. (4) Some further shocking aspects which have surfaced during the proceedings in this matter today, are:- (a) that neither the LDA nor the city or Town Governments/ Administrations know which part of the city of Lahore for the purpose of construction of the building in question, falls within whose jurisdiction; (b) the Town Nazim submit that commercialization of areas even within their respective controls was not with them but the sanctioning of plans for buildings including high-rise buildings did fall within their power and that the plans for high-rise buildings within their respective jurisdiction were being sanctioned by them; (c) they, however, ambit and in fact complain that no qualified engineers etc. Were available with them to assess the structural stability aspects of the high-rise buildings which they were…
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