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Petitioner: PRINTEK (PVT.) LTD. Through Executive Director And 3 Others VS Respondent: 12. SHAHID JUDGMENT
Court Name: Sindh High Court Judge(s): Mushir Alam, Muhammad Ather Saeed Title:PRINTEK (PVT.) LTD. Through Executive Director And 3 Others vs 12. SHAHID
JUDGMENT
Reported As: 2011 YLR 2941 Result: Petition disposed of Judgment JUDGMENT MUHAMMAD ATHAR SAEED, J.---The petitioners have preferred this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, against the alleged illegal construction over Plot No.13, Survey Nos.110 and 111, Deh Drigh Road, Shaheed-e-Millat Expressway, of Korangi Road, Karachi (hereinafter referred to as the subject plot) proposed to be raised by the respondent No.1/Ms City Developers. The respondent No.2 is Karachi Building Control Authority, the respondent No.3 is Nazim-e-Aala an authority under section 4 of the Sindh Building Control Authority, 1979, the respondent No.4 is City District Government while the respondent No.5 is Sheri- CBE (Citizens For a Better Environment). 2. We have heard Ms. Sana Minhas Advocate for the petitioners, Dr. Faroagh Naseem Advocate for the respondent No.1, Mr. Anwai Ali Shah Advocate for respondent No.2. KBCA and Mr. Abdul Rehman's Advocate for respondent No.5 Shehri-CBE. Besides oral arguments the learned counsel also filed synopsis of them arguments/objections, which we have examined but are not reproducing and will consider the same when we examine the petition for arriving at the decision. 3. She submitted that she is neighbour of respondent No. 1 who is in possession of the subject plot, which is about 40 feet away from her building, and by a plan duly approved by KBCA the respondent No.1 has been allowed to construct a building comprising of basement, ground, mezzanine floor and seventeen floors in which they plan to construct 271 flats and 37 shops and the height of this building according to the approved plan is 193 feet. Learned counsel submitted that she will first point out the violations committed by KBCA in approving the plan, then the violations made by respondent No. 1 against the provisions of the approved plan. She also showed her intention to satisfy this court that the amendments which have been made in Karachi Building and
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Town Planning Regulation, 2002 are not valid and legal because first of all they have not been published in the Gazette and secondly the authority who amended these regulations is not competent to make such amendments. 4. The violations made by the KBCA while approving the plan of the respondent No.1, as pointed out by the learned counsel, are as follows:- (i) According to the provisions of Regulation 25-1.8 the maximum height which could have been allowed to the respondent cannot be for more than 85 feet as the plot where the construction is being Raised is served with a road of approximately 30 feet were, then there is a Nala of 18 feet and a raised space of 5 feet and then there is Shaheed-e-Millat Expresswa y which is 150 feet were. Learned counsel submitted that since this 30 feet road serves the building, therefore, it is to be considered for the purpose of computation of the height of the building in accordance with the provision of the above mentioned regulation. (ii) Her second contention is that the maximum footprint, which have been provided under Regulation 25-3.1 is 65%. This contention is also without prejudice to her contention that building should be considered to a flat site and not a commercial site and therefore only 40% footprint should be allowed. She stated that in the approved plan 70% footprint has been allowed. She has conceded that according to the amended regulations 70% footprint is allowed but as she intends to challenge the legality of the amendments, she has pointed out that this is a violation. (i.e) The third violation, pointed out by the learned counsel is in respect of the definition of Arcade given in the Regulation No. 2-12 of the Regulations 2002 read with Regulation No. 25-3.2. Her contention is that although the arcade is allowed lawfully but no construction is allowed over the arcade and KBCA has granted permission in the approved plan to construct flats over the said arcade. (iv) Her fourth contention on the plan is that open spaces between two blocks which have been provided in Regulation No. 25-1.5.1 should be 50% of the height of the building which comes to almost 87 feet whereas in the existing approved plan these spaces range from 28 to 39 feet only. (v) It is further contended that the Building Plan is in violation of. Regulation 25.3 as no compulsory open space on any side has been left. According to the learned counsel in the lay out plan COS shown have been eaten away in the approved plan available at page 27 of this file. It is contended that coverage of open space has been relaxed by the Presentation Committee for providing additional car parking. According to the learned counsel under the Sindh Building Control Ordinance, 1979 or Karachi Building Town Planning Regulations, Presentation Committee has no existence. It is even otherwise contended that the KBCA or any other authority has no jurisdiction to relax statutory requirement of compulsory open space. (vi) It is next urged that no sewerage facility has been provided in the vicinity in terms of Regulation 12.5. It is contended that the petitioner strongly apprehend that waste and sewerage would be led into rain water drain which will again create chaos in rainy season. It is further contended that height of the building is in violation of Regulation 25.2. (vii) Her seventh contention is that there is no lease document which may be produced and one of the precondition of the approval of the plan is that it should be on the land for which ownership documents have been produced. (viii)She also contended that reference to the floor Area Ratio which is 1:2.75 for the purposes of flat site, and if the land is treated as commercial, FAR is 1:5.5. 5. She also referred to a report which was filed by the KBCA and is available on record and pointed out that the member of Committee Mr. Imran Ahmed Farooqui, who has been declared as Senior Architect, according to the learned counsel could not sit in the Committee because he had earlier
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advised the petitioner on the violation of this building. 6. On the legal point, the learned counsel submitted that amendments have not been published in the Official Gazette in accordance with section 19-A of the General Clauses Act. She further argued that the relevant amendments have been made in Ordinance, 2005 whereas section 19-A has been introduced in General Clauses Act on 18-9-2002. She has relied upon certain cases on the following four proposition Of law: (1) Documents cannot be attributed to the legislation; (2) Factual investigation is possible in petition; (3) Maintainability of the petition; (4) Shortage of amenities. 7. She has also pointed out that according to the layout plan they were supposed to leave 72.5 feet on the left side and 34.5 feet on the right side whereas they have drawn perpendicular from left hand side to right hand side which leaves space of 45 feet on the left side. She therefore prayed that the petition may be allowed, the approved plan cancelled and the building demolished. 8. Mr. Abdul Rehman's, learned counsel for respondent No. 5 has pointed out that first of all the notification for making amendments was not published in the Official Gazette and secondly it has been made by a Government Official who was serving as Caretaker Nazim and he pointed out that under the notification dated 10-4-2004 only the Nazim of CDGK has been nominated to act as Authority for District Karachi for the purposes of Sindh Building Control Ordinance, 1979. The learned counsel also argued that KBCA does not fall within the definition of Local Government or District Government and for this purpose he relied on various provisions of Sindh Local Government Ordinance. According to the learned counsel right to legislate is a sacrosanct right and cannot be exercised without jurisdiction. Learned counsel also submitted that section 22 of General Clauses Act provides for publication of draft of the proposed amendment and invitation of objection and this was not done. Arguing about the various amended regulations, learned counsel submitted that even without prejudice to his arguments that the amendments have been made without following the due process and by an authority not competent to do so, but even if, they were made after following the process and by Authority component to make it, there are certain amendments which have no nexus with the earlier Ordinance. Lastly the learned counsel pointed out the Regulation 3.3 under which permits and licenses are to be issued, for land development has not been implemented by the KBCA for any approved plan, as far as his knowledge goes, but according to the learned counsel it is compulsory to obtain such license and even in the case of present respondent this license has not been obtained. 9. Dr. Muhammad Farogh Nasim the learned counsel for the respondent No. 1 argued and on the basis of various case-la.w tried to rebut the contentions of the learned counsel for the petitioners. Learned counsel has first taken the point of the Floor Area Ratio and has enumerated seven rules in respect of his contention that the FAR in the building being constructed by the respondent No.1 will be that of that FAR which is available to commercial building and not to flat site or residential building. In this connection he argued that the following rules are applicable to substantiate his arguments:--- (i) Rule of categorization by way of elimination; (ii) analogous interpretation; (i.e) departmental practice; (iv) higher or greater includes lesser; (v) order of public functionaries; (vi) right of legitimate expectancy;
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(vii) fact that the respondent had paid commercial fee. He elaborated on these principles at some length. 10. Learned counsel then presented a number of photographs and also relied on the provision of Regulation 25-3.2(3) to point out that the argument of the petitioners' counsel that flat cannot be constructed over the arcade is absurd and illogical and if it is accepted, it will be grave violation of the provisions of Building Control Regulations and also will be against the principle of harmonious interpretation. Learned counsel then took us through the definition of 'amenity', 'commercial ', ' residential ', 'industrial buildings and flat site' to point out that his building falls within the definition of 'commercial building' and not under the definition of any other category. He referred to Articles 67, 85 and 90 of KDA Order No.5 of 1957 regarding open space. Learned counsel referred to Regulation 25-1.5.1 to submit that this regulation applies only to the 'residential category' and not to 'commercial category'. In respect to the challenge of KBCA report, in which one Imran Farooqui was sitting as a member, learned counsel submitted that it is a settled principle of law that if there is only a bias in respect of one member of the committee then the report of the committee cannot be rejected only on the alleged bias of one person, in this connection he relied upon a case of Lahore High Court reported in 1998 CLC 641, however without prejudice to his above argument on the basis of the judgment, he stated that even if the report is ignored, he will not be prejudiced and secondly that the burden to prove that the bias of Imran Farooqui had caused a prejudice will be on the petitioner, who is making this allegation. Learned counsel also referred to the Zonning Regulation Chapter 25 to substantiate his contention that his site is commercial site and also relied on the documents of the petitioner to submit that they have already been allowed FAR 1-5.5. 11. Dr. M. Farogh Nasim further argued that the main serving road cannot be 30 feet were road, adjacent to the building because that is only a service road which does not even have a name. Ms. Sana has pointed out that there are two roads but conceded that there is no board or indicator from which the name can be identified. Dr. Farogh Nasim, in respect of his arguments, took us through the records of the case and specifically pointed out the layout plan on page 27 as far as realization of cost was concerned, he then took us through pages 507, 731, 773, 783 and 175 to point out that in all these pages the address of the petitioner has not been shown as 13 Shaheed-e-Millat Expresswa y and the address of the plaintiff shown as 5 Shaheede-Millat Expressway and therefore submitted that the main serving road is Shaheed-e-Millat. Expressway and not 30 feet were road, which according to the contention of the learned counsel for the petitioner is the main serving road. He further submitted that this road does not even have a name, the learned counsel for.Petitioner replies that the name of the road is Defence View Road but concedes that there is no sign board specifying this name. However at this stage both the learned counsel have conceded that if either of these roads are held by this court to be the main serving road then the computation of height as declared by both the learned counsel is correct. 12. Coming to the next point, whether the disputed plot can be considered a flat site or a commercial property, for computation of FAR, the learned counsel submitted that flat site is defined in Regulation 2.5.4 at page 18, as the site specified for the purpose of multi-families residence and is basically commercial-cumresidence and in accordance with the provisions of Regulation 25-9.6.7 it will be treated as a Commercial building under Regulation 5.3.1. At this stage Mr. Rehman's pointed out that Regulation 25-9.6.7 is only related to compulsory open.Space and foot print and not to FAR. 13. Learned Counsel for the petitioner had submitted a list of case-law, whereas learned counsel for KBCA had filed a detailed reply to the objection of the petitioner against repot of the KBCA, copies of which had been supplied, in court to the learned counsel for the petitioner and intervener. Dr. Farogh Nasim had also supplied certain documents, of which objections had been taken by the
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learned counsel for the petitioners. 14. Mr. Anwar Ali Shah Advocate for respondent No.2 KBCA adopted the arguments of respondent No.1 and also filed synopsis of his arguments which are reproduced as under:-- "It is respectfully submitted on behalf of the respondent No.2, KBCA as under:-- (1) That it is a case of approval of building plan in respect of proposed Multi Storeyed under construction Commercial Building in accordance with approved plan. (2) That the land was initially owned by the Board of Revenue, Sindh, as residential-cum- commercial Plots Nos.12 and 13, Survey No.110 and 111, Deh Drigh Road Karachi, and form-II, was issued, in the name of Mr. Shahid Nabi. (3) That as per layout plan the plot in question is facing towards 150 feet vide road now namely Shaheed-eMillat bypass Expresswa y, and on its southern side a road is also shown in the layout plan, which is existing 40 feet were. (4) That both the plots were amalgamated and revised layout plan was approved by the MPGO, CDGK, as final Plot No.13, Survey. No.110 and 111, Deh Drigh Road Karachi, vide letter No.URP-30- 63/MPG0/2006/UDI126/L dated 21-3-2006. (5) That the owner submitted proposed plan for construction along with all relevant documents, accompanied with forwarding letter dated 24-4-2006 from the District Officer (Rev), CDGK, as required under the provisions of Regulation 3-2.2 of the KBTPR 2002, which reads as under:-- 3-2.2. Submission of plans for approval. The owner shall submit to the Authority: 3-2.2.1. Two sets of all documents relating to the plot together with a letter from the concerned authority confirming the title/land use physically fresh demarcated/ dimensions of the plot along with the existence of any road widening/ cut line reservation. (6) That as per procedure the case was forwarded to the Town Planning Section, KBCA for NOC on Town Planning point of view, which was accorded after detailed study of the plan, vide No.Deh/P- I/2006/144 dated 31-5-2006. (7) That on the basis of TP, NOC, Architectural approval was granted vide letter dated 10-6-2006. (8) That on the basis of TP NOC, Architectural approval, the case was processed for structural clearance, and after completion of all formalities as required for the proposed building, the Structure Section KBCA accorded Structural NOC dated 5-10-2006. (9) That on the basis of above mentioned NOCs and the relevant documents submitted with the plan and clearance of the title etc. Final approval was granted for construction of Lower Ground (Parking) + Ground Floor with 40% Loft (Shops in front and side and parking on rest of the area) + 17 Upper Floors (1st to 4th floors parking, 2% amenities on part portion of 5th Floor and apartments on remaining 5th Floor to 17th floor) vide letter dated 18-10-2006. (10) That the approval has been granted with road cutting of the plot in question as marked on the site plan, in addition to it, an extra Setback of 11 feet, has been approved and maintained at site, whereafter 08 feet Arcade has also been maintained towards both the roads i.e. 150 feet vide road and 40 feet vide road. (11) That the COS has also been approved and maintained more than that as required under the Regulation No.25-3 of the KBTPR 2002, as it was not in conflict with the regulations 25-9 of the KBTPR 2002, that is applicable only for "OLD CITY AREAS" as captioned. (12) That footprint has also been approved and maintained as per regulation 25-3 of the KBTPR 2002 and mentioned on the approved layout plan by the MPGO, CDGK. (13) That the plot in question admeasuring 9680.00, square yards having commercial category situated on 150.00 feet were road Korangi Expresswa y. (14) That the requirements of, the KBTPR 2002 chapter 25-3 at the time of approval of plot in
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question are as under: 25-3 COMMERCIAL 25-3.1. Building Bulk standards: All commercial plots shall observe the following standards, except where any of these standards are in conflict with clause 25-9, in which case clause 25-9 shall prevail.{{TABLE}} (1) (2) (3) (4) Plot size (Sq. Yds.) Footprint FAR Minimum Arcade Over 2000 Square Yards Ground Floor 70% Upper Floors 65% 1:5.5 8 Ft. (2.5m) (5) (6) (7) (8) Minimum COS sides upto 30 Ft. Height Minimum COS sides above 30. Ft. Height Minimum COS rear upto 30 Ft height Minimum COS rear above 30 Ft. Height 10 Ft, (3m) 10% of building height above ground floor with a minimum of 10 Ft. (3m) 10 Ft. (3m) 10% of building height above ground floor with a minimum of 10 Ft. 25-3.2. Other Conditions (1) For-plots-abutting-public street at the rear, rear COS above 30 Ft. (9m) shall be only minimum as specified for Plot size. (2) Plots where the allotment conditions or previous rules permit for higher FAR than the FAR noted in the above chart (25-3.1), the allotment conditions or previous regulations which provide for higher FAR shall be adopted. (3) In case of corner plot, COS on sides abutting the lane or road shall be condoned and arcade will be provided. (4) Arcade on front/sides not required if building lines setback 8.0 Ft. Or more from the property line. (5) Wherever minimum COS on sides and rear is specified in relation to height of building, the COS shall be equal to 10% of building height above Ground Floor but subject to maximum of 15% of plot width depth on each side/rear respectively but with minimum as prescribed. (15) That the regulation 25-9.6.7 reads as under:-- 25-9.6.7 For all commercial/ residential-cum-commercial plots facing more than 10m road/street width the minimum COS and foot print as prescribed in Clause 25-3 shall be applied. (16) That in the present case as per available record, the details are as under:--{{TABLE}} (1) (2) (3) (4) Plot size (Sq. Yds.) Footprint FAR Minimum Arcade 9680 Sq. Ground 1:5.5 8.0 Ft. Yds. Floor required (70% 60984 allowable 479160 approved Sq. Ft. Approved 479128 60884.96 upper floors allowable 56628.0 approved 37690.75 Sq. Ft. (5) (6) (7) (8) Minimum COS sides upto 30 Ft. Height Minimum COS sides above 30 Ft. Height Minimum COS rear upto 30 Ft. Height Minimum COS rear above 30 Ft. Height
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From 25.0 Ft. To 44.0 Ft. According to shape of plot + parking From 25.0 Ft. To 44.0 Ft. According to shape of plot 23.0 Ft. According to shape of plot + parking From 15.0 Ft. To 23.Q Ft. According to shape of plot (17) That the above specifications are strictly in accordance with the KBTPR 2002. The KBCA has complied with all the relevant provisions of law and the regulations at relevant time and nothing has been overlooked or violated and any sort of exemption/ relaxation has not been granted to the owner in any manner, and the said approval has been granted strictly in accordance with the law. (18) That this honourable Court has passed order dated 28-2-2008, relevant portion of which reads as under:-- "3 and 4. The matter is already fixed on 19-3-2008, DCB as well as Expert Engineer of KBCA to reexamine the location of the building, keeping in view the grievance raised in this petition and apprise the court on the above date, copy of this order may be sent to Chief Controller of KBCA, so that there may not be any delay." In compliance of the above- order, the Chief Controller of Buildings, KBCA, constituted a committee comprising of the following members;{{TABLE}} Mr. Nisar Ahmed TBCO, Jamshed Town (Head) Mr. Khawaja Badie- uz-Zaman DCB, Planning Control Mr. Munir Ahmed DCB Jamshed Town Mr. Imran Ahmed 'Farooqui Sr. Architect, (Trusted professional of petitioner) That the said committee conducted site inspection on 12-3-2008 in presence of the following:- (i) Project Lic. Architect Mr. Akbar Jamil. (ii) Project Lic. Engineer Mr. Arif Kasam. (i.e) Mr. Shahid Nabi, the Owner. (19) That the road existing between plot of the petitioner and of the respondent No.1, is 40 Feet were and any Nalah passing along any road is part and parcel of such road, it includes total dimension of the road mentioned in the layout plan and it is not measured separately. (20) That the centre portion of road namely median, service road drain and main road are part and parcel of 150 Feet Wide road namely Expressway, it has been elaborated in Figure-II titled STREETS AND ROADS (G-1 & G 2) of the KBTPR-2002-(fixedafter Regulation 25-13). (21) That the authority under the SBCO 1979 is empowered under section 21-A, to frame regulations and subsequently may amend or alter the same in consonance with the SBCO 1979. The Authority has amended the regulations vide Notification No. Caretaker DCO/ CDGK/35/2005, Karachi dated 4th August, 2005, which has been published in official Gazette of Government of Sindh as required
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under the law. Copy has already been submitted with the report of the KBCA. (22) That the building standard as prescribed in Table 25-3 of the KBTPR 2000 (amended up to date) is applicable as marked by the MPGO, CDGK, moreover approval of building plan has been granted by the KBCA as per KBTPR 2002. The COS as per approved plan (more than requirement of KBTPR 2002) has been maintained at site as per report of the above-mentioned committee, relevant portion of which is reproduced as under:-- "At site in the rear block, construction work is nearly completed up to plinth level in accordance with the approved building plan and in the front log pilling work is completed for plinth." (23) That as per table 25-3, the permissible Foot Print for plot having area more than 2000 Sq. Yards is 70% for Ground Floor and 65% for Upper Floors, which has been followed in approved plan. (24) That the said, committee has submitted report mentioning therein as under:-- "It is pointed out that the disposal of public sewer is also available at site and storm water drain disposal channel is also available at site of suit plot as well as petitioner's plot. Further it is submitted that Environmental Protection Agency Government of Sindh had also issued their NOC for the said project vide No. EPA/2006/03/ 28/IEE/52 dated 13-6-2006. As such the allegation of destroying ecology and environment of the surrounding area does not arise." (25) That as per report of the committee, the proposed building is facing 150 feet were road, relevant portion reads as under:- "In this area in KBTPR there is no height restriction but the building is required to maintain the 65 Degree angle at front of pot. In front side the subject plot is faced 150 Ft were Shaheed-e-Millat Expressway. As such 65 Degree angle is maintained in the approved building plan. The proposed height of the building is 190 feet which is far below than the allowable height (321 feet)" (26) That parking space is required to be provided for 312 cars whereas the owner has provided parking space for 618…
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