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Petitioner: MAQBOOL COOPERATIVE HOUSING SOCIETY through Member of the Managing Committee VS Respondent: KARACHI BUILDING CONTROL AUTHORITY through Chief Controller and othersHonorable Justice MUHAMMAD MUJEEBULLAH SIDDIQUIKhawaja Shamsul Islam,Shahid Jamiluddin Ahmed Khan
2004 C L C 1567
2004 C L C 1567
[Karachi]
Before Muhammad Mujeebullah Siddiqui and Syed Zawwar Hussain Jaffery, JJ
MAQBOOL COOPERATIVE HOUSING SOCIETY through Member of the Managing Committee---Petitioner
Versus
KARACHI BUILDING CONTROL AUTHORITY through Chief Controller and others---Respondents
C.M.As. Nos.861, 3162, 5783 of 2003, 45, 46, 47 and 188 of 2004 in Constitution Petition No.D-1652 of 1998, decided on 3rd June, 2004.
(a) Civil Procedure Code (V of 1908)---
----O. I, R.10---Decision in respect of the -building made against the builder shall be binding on the persons occupying the property through him and are not entitled to be impleaded as party.
(b) Constitution of Pakistan (1973)-----
----Art. 199---Constitutional petition---Question of fact cannot be decided in the proceedings under Art. 199 of the Constitution.
(c) Civil Procedure Code (V of 1908)-----
----O. I, R.10--Infervenors have no independent right to be impleaded as parties for contesting the issue pertaining to the authorized or unauthorized construction of the building when the Builder as well as Building Authority, who are the necessary and proper parties, are already before the Court.
(d) Precedent---
---- Judgment delivered by one Division Bench of the High Court has the binding effect on another Division Bench.
(e) Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance (VIII of 2002)------
----S. 5---Scope and application of S.5, Sindh Regulation, and Control (Use of Plots and Construction of Buildings) Ordinance, 2002)-- Section 5 of the Ordinance speaks of the regularization of building constructed before the commencement of the said Ordinance in violation of the provisions of Sindh Buildings Control Ordinance, 1979---Said section 5 nowhere empowers the Building Authority or any Authority, to approve the regularization plan but it merely empowers the Authority appointed under the Sindh Buildings Control Ordinance. 1979, regularize the building already constructed---Terms "building" and "building plan" are not synonymous to each other and cannot be equated to each other---Approval of building plan is dealt with under the provisions of the Sindh Buildings Control Ordinance, 1979 and there is no provision in this behalf in the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002---Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002 neither deals with the compounding of offence committed by contravening the relevant law nor envisages any process pertaining to the building plan, the approval thereof and the consequences of violation of the building plan---Such provisions are contained in Ss.6, 7 and 7-A of the Sindh Buildings Control Ordinance, 1979.
(f) Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance (VIII of 2002)------
----S. 5---object, and scope of S.5, Sindh Regulation and Control (Use of Plots and Construction of Buildings). Ordinance, 2002.
All that section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002 appears to have done is to extend such powers enabling the Authority even to accord post facto approval to a building already constructed subject to certain conditions and limitations.
In substance it appears that through the said Ordinance, the Legislature attempted to treat the buildings constructed in violation of law as fait accompli (subject to certain conditions) despite the fact that the Sindh Buildings Control Ordinance and Regulations continued to remain operative.
The object of the Ordinance is to protect a definite class op people and not to destroy the Building Control Laws. The words "building constructed before the commencement 'of this Ordinance" occurring in section 5 must only be confined to those buildings which were fully completed on the date of the commencement of the Ordinance and would not apply to any incomplete building or one in the process of construction.
One or more objects, may be added to the object of protecting the investments and right of shelter of the occupants, nonetheless, the language employed by the Legislature in section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, remains the same and the connotation as well as scope thereof shall remain unaltered.
(g) Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance (VIII of 2002)------
----Ss. 5 & 2(b)---Scope and applicability of S.5, Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002-- Section 5 of the Ordinance empowers the Authority appointed under the Ordinance to regularize any building constructed before the commencement of the Ordinance in violation of the provisions of Sindh Buildings Control Ordinance, 1979 or regulations made thereunder-- Provisions contained in Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002 are restricted to accord post facto regularization of the buildings already constructed before the commencement of the Ordinance and the Ordinance does not contain any provision for according approval to illegal building plan and to accord permission to commit illegality in future---Word "building" used in S.5 of the Ordinance shall be considered in the light of definition contained in S.2(b) of the said Ordinance---Building fully constructed before the commencement of Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, in violation of Building Laws or a portion thereof fully completed before the commencement of the said, Ordinance may be regularized---Where before the commencement of the Ordinance neither the entire building under consideration nor any portion thereof was constructed in all respects, regularization of such building under S.5 of the Ordinance could not be made---Provisions of S.5 of the Ordinance could no', be extended to incomplete buildings (or portion thereof) or in the process of construction---Principles illustrated.
The Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, is an independent piece of legislation and is a complete code in itself. It contains its own definition' clause and it is nowhere stated that the words, terms or expressions used in this Ordinance are to be read with the definition contained in the Sindh Buildings Control Ordinance, 1979 or any words or terms not defined in this Ordinance shall have the same meanings as contained in the Sindh Buildings Control Ordinance, 1979. On the contrary under section 3 of this Ordinance, the provisions contained therein shall override the provisions contained in any other law for the time being in force. The result is that the word "building" used in section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, shall be considered in the light of definition contained in section 2(b) of the said Ordinance. According to this definition "building" means a plot or portion thereof constructed on a plot. The definition starts with the word means which indicates that the definition is conclusive and is not inclusive. When, the definition as above, is read with the provisions contained in section 5 one finds that a building fully constructed before the commencement of-the Ordinance, in violation of building laws or a portion thereof fully completed before the commencement of the Ordinance, may be regularized. For instance, if a builder announced a project for a 10 storeyed building, which was in violation of the building laws and commenced the construction. Now if he has erected the structure of all the 10 floors, but none of the floor was fully completed, no portion of the building will be regularized. However, if one or two floors were fully completed in all respects before the commencement of the Ordinance then only such portion could be regularized and the remaining 8 or 9 floors which were incomplete or were in process of construction were liable to be demolished for the simple reason that the amnesty provision was not available to such incomplete portion/portions of the building which were to be governed in accordance with the Sindh Buildings Control Ordinance, 1979, Regulations and Rules. The reason being that the amnesty law merely intended pardon/oblivion to the offence already committed in respect of a building or portion thereof, constructed before the commencement of the Ordinance without making the Building Control Ordinance and Regulations inoperative which continued to hold the field and remained operative, so far, a building or portion thereof was not constructed but was in the process of being constructed and was incomplete.
In the present case it is admitted position that before the commencement of the amnesty law neither the entire building under consideration nor any portion thereof was constructed in all respects. On the contrary, the admitted physical position was that 2 upper floors were fully demolished. While the remaining floors were demolished and damaged to the extent that they were made inhabitable and were in a dangerous state of affairs to the extent that even demolition was required to be made under the expert supervision, under the advice of Dangerous Buildings Committee. The result is, that, even after accepting the contention that the regularization was not restricted to an entire building/project but it extended to a portion of building as well, a building or portion thereof in a dangerous condition, being hazardous to life could not either be regularized or in the first instance it could be permitted to be reinforced, repaired and resurrected in complete violation of the Sindh Buildings Control Ordinance, 1979 and Regulations; and then could be regularized after expiry of the amnesty law. This is not possible without doing violence to specific provisions of law contained in section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, and disregarding the very concept of amnesty scheme. The provisions contained in the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, had merely an overriding effect for the purpose of regularization of building or portion thereof already constructed before the commencement of Ordinance, and had no effect of either temporarily repealing the provisions contained in Sindh Buildings Control Ordinance, 1979 and the Regulations or making them inoperative except for limited purposes envisaged in the Ordinance.
Provisions contained in Sindh Regulation and Control. (Use of Plots and Construction of Buildings) Ordinance, 2002, are restricted to accord post facto regularization of the buildings already constructed before the commencement of the Ordinance and the amnesty law does not contain any provision for according approval to illegal building plan and to accord permission to commit illegality in future and that in fact the approval accorded to the building plan in the present case and permission to carry them out is beyond the scope of amnesty law. It is in complete violation of the Sindh Buildings Control Ordinance, 1979 and the Regulations thereunder, which provisions of law deal with the approval of building plan, compounding of the offences, issuance of certificate of completion etc. It needs no emphasis that during the pendency of present petition the Authority had stated in unequivocal terms that neither the building plan was approved, nor it could be approved under the laws and that the entire building was constructed by resort to "Ghundagardi" and that the building so constructed was liable to be demolished/erased in accordance with the law.
The regularization is confined to the buildings already constructed/completed before the commencement of the Ordinance and through the amnesty law the Legislature has merely attempted to accord regularization to such illegally constructed buildings in violation of law as fait accompli. The provisions contained in section 5 are not extended to incomplete buildings (or portion thereof) or in the process of construction.
A bare reading of section 5 shows that it, empowers the authority appointed under the Ordinance to regularize, "any building constructed before the commencement of this Ordinance in violation of the provisions of the Ordinance or regulations made thereunder".
The word "constructed" has been used in section 5 by the Legislature. The expression used is in past tense and by no stretch of imagination it brings into its fold any construction to be raised in future or any construction which is incomplete or is in process of construction. One of the methods of ascertaining the intention of the Legislature is to compare a particular provision with other provisions of law on similar subject. When one compares section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, with the provisions contained in section 6(1) of the Sindh Buildings Control Ordinance, 1979, one finds that the expression used therein is, "no building shall be constructed before the authority has, in the prescribed manner, approved the plan of such building". The marked difference and distinction in the expressions used in the two provisions shows that in first provision expression "constructed" has been used, which denotes the construction which had already taken place, while in the second provision it relates to the intended construction which is to take place in future. The use of the expressions immediately after the word "construction", "before the commencement of this Ordinance in violation of the provisions of the Ordinance or Regulations made thereunder" further strengthens the that the regularization envisaged under section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, is confined to the buildings (or portion thereof) already constructed/completed in all respects before the commencement of the Ordinance and not to the construction either original or resurrected after the commencement of the Ordinance. Anything done or any act taken after the commencement of the Ordinance is clearly excluded from the provisions of section 5 and is beyond the purview thereof. The word "regularized" is itself indicative of the intention of the Legislature that it will apply to only such illegalities/irregularities which already stand committed before the commencement of the Ordinance. The expression "regularized" cannot be equated with the permission to commit the illegalities and violate the provisions of law. No authority is ever empowered to accord such permission and then subsequently affix the seal of approval or regularization on commission of such illegalities. Such course shall be destructive of the entire concept of the rule of law, having the effect of demolishing the entire legal system and would amount to creation of anarchy in the society. Such a situation could not be visualized in a State governed by the laws, but it would amount to perpetuate the law of jungle. Such a contention contains inherent contradiction and is destructive of the concept of the rule of law.
It envisages that although every individual and collective matter of the society is to be governed by the laws enacted from time to time, but certain functionaries appointed by, or under the same law, shall have the authority to accord permission to commit the illegalities with complete impunity, without fear of any adverse consequences, with the assurance that the illegalities allowed to be committed shall be validated. This would be a very horrible proposition which cannot be termed as proposition of law but would amount to proposition of negation of the law.
(h) Interpretation of statutes---
---- Language of statute---Court has to read the plain language of law and interpret the same in accordance with the consequences flowing from the plain language of law.
(i) Interpretation of statutes-----
---- Words in an enactment---Legislature shall always be deemed to have full knowledge of the import and meanings of the words used in an enactment.
(j) Interpretation of statutes---
----Intention of the Legislature---One of the methods of ascertaining the intention of Legislature is to compare a particular provision with other provisions of law on similar subject.
(k) Amnesty Scheme---
---- Concept, scope of the pardon and amnesty--- "Pardon" and "amnesty"---Distinction.
Wharton's Law Lexicon (1957 Edn.); Roget's Thesaurus, Shorter Oxford English Dictionary (1992 Edn.); Legal Thesaurus; Black's Law Dictionary (1990 Edn.); Stroud's Judicial Dictionary; Handbook of American Constitution (1939 Edn.); United States.v. Wilson (1963) 8 Law Edn. 640 (B); 3 Co. Inst. 233 and Halsbury's Laws of England 2nd Edn. p.477 ref.
(l) Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance (VIII of 2002)-----
----Preamble---Ordinance though is in the nature of amnesty scheme but has not empowered the Building Authority to accord approval to the building plan which was admittedly illegal and was held to be so by the High Court.
(m) Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance (VIII of 2002)-----
----S. 5---Sindh Buildings Control Ordinance (V of 1979), Preamble-- Constitution of Pakistan (1973), Art.199---Constitutional petition'---Provisions of S.5, Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, is confined to those buildings which were fully completed on the date of commencement of the Ordinance and would not apply to any incomplete building or one in the process of construction ---Sindh Regulation and Control. (Use of Plots and Construction of Buildings) Ordinance, 2002 is in the nature of amnesty scheme and every amnesty scheme provides oblivion to the illegalities/offences already committed before the commencement of the amnesty scheme and no provision in such scheme is attracted to the acts done and illegalities committed after the date of commencement pf the scheme---Competent Authorities are merely empowered to extend oblivion to the illegalities already committed before the commencement of such scheme and have no authority to give approval for commission of any illegality after the commencement of amnesty scheme and any such act is violative of the Amnesty Scheme---Authorities, in the present case, had deliberately exceeded their jurisdiction and have connived and collaborated with the builder in his design to perpetuate the illegality, which they -had tooth-and-nail opposed till the disposal of the present petition and had violated the direction of the High Court and undertaking to demolish the entire building---High Court, in circumstances, directed the Chief Controller Buildings .and all other concerned officials under him to immediately demolish/erase the entire building forthwith and report compliance to the High Court within two months---Demolition was directed to be undertaken in consultation with the Electric Supply Company of the city, Sui Gas Company, Water and Sewerage Board and all other civic bodies connected with the public amenities---Chief Controller, Building may seek any assistance required by him from any agency Central, Provincial or Local including Rangers and police---All the authorities under the administrative Control of Federal Government. Provincial Government or local Government were directed by the High Court to provide all necessary and adequate help in this regard to the Building Authority---Services of Experts, if required for the purpose of demolition could also be hired by the Building Authority initially at its own expenses and subsequently, to be reimbursed by the builder who had resorted to the blatant illegality and violation of the law and directions given by the High Court.
In the present case the proceedings initiated by the builder in active collaboration with officials of the Building Authority on 12-1-2002, prior, to the promulgation and commencement of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance 2002, were under the provisions of Sindh Buildings Control Ordinance, 1979 and not under the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, for the simple reason that the later Ordinance was not promulgated by that time.
The subsequent proceedings including the proceedings of dangerous Building Committee were undertaken under the Sindh Buildings Control Ordinance, 1979 and not under the Sindh Regulation and Control, (Use of Plots and Construction of Buildings) Ordinance, 2002.
The entire proceedings and all acts by all concerned in this behalf in between 12-1-2002 and 21-4-2003 were violative of the provisions contained in the Sindh Buildings Control Ordinance, 1979 as well as Sindh Regulation and Control (Use of Plots and Construction of buildings) Ordinance, 2002.
All the approvals, completion certificate, regularization and the recommendations of Technical Committee for Dangerous Buildings, were violative of the orders passed by High Court directing the demolition of building constructed illegally and in the words of Building Authority under "Ghundagardi".
Section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, is confined to those buildings which were fully completed on the date of commencement of the Ordinance and would not apply to any incomplete building or one in the process of construction.
The Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, is in the nature of amnesty scheme and every amnesty scheme provides oblivion to the illegalities/offences already committed before the commencement of the amnesty scheme and no provision in the amnesty scheme is attracted to the acts done and illegalities committed after the date of commencement of the scheme. The authorities competent are merely empowered to extend oblivion to the illegalities already committed before the commencement of the scheme and have no authority to give approval for commission of any illegality after the commencement of amnesty scheme and any such act is violative of the amnesty scheme.
The authorities have deliberately exceeded their jurisdiction and have connived and collaborated with the builder in his design to perpetuate the illegality, which they had tooth-and-nail opposed till the disposal of petition and have violated the direction of High Court, and undertaking to demolish the entire building.
High Court, in circumstances directed the Chief Controller Building and all other concerned officials under him to immediately demolish/erase the entire building forthwith and report compliance to High Court within two months. The demolition should be undertaken in consultation with the KESC, Sui Gas Company, Water and Sewerage Board and all other civic bodies connected with the public amenities. The Chief Controller Building may seek any assistance required by him from any agency. Central, Provincial or Local including Rangers and. police-- All the Authorities under the administrative Control of Federal Government Provincial Government or Local Government were directed to provide all necessary and adequate help in this regard to the KBCA. Services of Experts, if required for the purpose of demolition may also be hired by the Building Authority initially at its own expenses and subsequently, to be reimbursed by the builder who had resorted to the blatant illegality and violation of the law and directions given by the High Court.
2004 CLC 1353 ref.
Khawaja Shamsul Islam for Petitioner.
Shahid Jamiluddin Ahmed Khan for Respondent No. 1.
Muhammad Daevood through Asim Munir A. Malik for Contemner No.3.
Asim Mansoor for Contemner No.4.
Ismail Memon, Danish Shah holding brief for Farogh Naseem for Intervenors.
Dates of hearing: 10th and 11th February, 2004.
ORDER
MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---------By this single consolidated order we propose to decide following 7 miscellaneous applications:--
(1) C.M.A. No.861 of 2003, (2) C.M.A. No.3162 of 2003, (3) C.M.A. No.5783 of 2003, (4) C.M.A. No.45 of 2004, (5) C.M.A. No.46 of 2004, (6) CM.A. No.47 of 2004 and (7) C.M.A. No. 188 of 2004.
2. This case has a chequered history, therefore, in order to correctly appreciate the applications under consideration, a detailed and proper marshalling of facts is absolutely necessary.
3. The relevant facts are that the petitioner a society registered under the Cooperative Societies Act, 1925, filed C. P. No. 1652 of 1998, with the following prayer:--
"It is, therefore, respectfully prayed that this Honourable Court may be pleased to:--
(a)…
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