MAQBOOL COOPERATIVE HOUSING SOCIETY through Member of the Managing Committee Versus KARACHI BUILDING CONTROL AUTHORITY through Chief Controller and others
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) Permanently restrain the respondents or any person acting for, under or on behalf of the respondents including (without limitation) their servants, employees, agents or officers from allowing, continuing or completing any construction on Plot No.43/3, Maqbool Cooperative Housing Society, Block-3, K.C.H.S. Union Ltd. (including without limitation, the building presently under construction) that is in violation of or contrary to the statutory and regulatory provisions or is in violation or in derogation of the petitioner's Society's right;
(b) permanently restrain the respondents or any person acting for under of on behalf of the respondents including (without limitation) their servants, employees, agents or officers from applying for, pursuing or seeking to compound or seeking or obtaining any similar relief in respect of any construction on the said Plot No.43/3 (including, without limitation, the building presently under construction) that is in violation of or contrary to the statutory or regulatory provisions or the rights of the petitioner Society's member;
(c) issue a mandatory injunction against the respondents directing them to demolish any construction on the said Plot No.43/3 that is in violation of or contrary to the statutory and regularity provisions or the rights of the petitioner's Society and failing that to authorize and direct the demolition of any such construction in any manner deemed appropriate by this Honourable Court;
(d) permanently restrain the respondents or any person acting for under or on behalf of the respondents including (without limitation) their servants, employees agents or officers from selling or attempting to sell, allotting, leasing, assigning or, in any manner whatsoever dealing in or disposing of or creating any third person interests whatsoever in respect of any construction on the said Plot No.43/3 (including, without limitation, the building presently under construction) or any part thereof that is in violation of or contrary to the statutory or regulatory provisions or from accepting any money from the public in respect of the foregoing: ,
(e) declare that the respondents Nos.2 to 3's building plan or any other plans or drawings purportedly approved for the said Plot No.43/3 or any other approval, permission, consent, sanction, recommendation or relaxation whatsoever granted, to be granted or purported to be granted in respect of constructing a multi residential building on the said Plot No.43/3 or allowing or purporting to allow the said plot to be used for purposes other than the construction of a ground plus one residential bungalow is void, illegal and of no lawful effect:
Without prejudice to the foregoing, in addition and/or in the alternative;
(f) pass the order against the respondents Nos.2 and 3 exclusively and direct the respondent No.1 to attach the illegal construction and demolish the illegal construction thereon;
(g) grant costs of the petition;
(h) grant such other relief or relief s which this Honourable Court may deem fit in the circumstances of the case."
4. The respondents were, (i) Karachi Building Control Authority, (ii) Muhammad Dawood son of Jan Muhammad and (iii) Abdul Karim Khan. Pre-admission notices were directed to be issued to all the three respondents. The respondent No. 1, was served while the respondents Nos.2 and 3 successfully avoided the service of notice on them from 30-8-1998 to 20-5-1999. In the meanwhile the petition was fixed for hearing on seven dates. .On 4-1-1999, the respondent No. 1, KBCA, filed the para-wise comments stating as follows:--
"It is respectfully submitted that proposed building plans were submitted for Ground + one upper floor by Mr. Khalid Siddiqui through Mr. A. Karim Khan (Attorney) duly forwarded by Society and Union. These plans were not approved because' construction work was started prior to approval. Notice for unauthorized construction was issued, an attempt for demolition was made but due to law and order situation complete demolition was not possible. Letters to S.D.M., S.H.O. Utility Agencies, Sub-Registrar were sent to take action as per rules. Photo copies of letters are attached and marked as Annexures "A", "B", "C" and "D" 'respectively. Public was also informed through Newspaper regarding unauthorized construction at site. Photo copy attached herewith as Annexures ... Demolition action was taken on 10-11-1998, 11-11-1998 and 13-11-1998, photographs attached herewith. It is further stated that the owner of the plot filed a Constitutional Petition vide No.1769/1998, Constitutional Petition No.1730/1998 and Suit No.1325 of 1998 in the Honourable High Court of Sindh at Karachi. Photo copy of Court's order is attached. It, is further stated that at present Basement + Ground + 7th Upper Floors are structurally completed and finishing work is in progress."
5. It was admitted that KBCA published a public notice in the daily "Dawn" dated 17-7-1998 and informed the general public that unauthorized construction in violation of the approved building plan was being carried out on Plot No.43/3, Block, 3, Maqboolabad Cooperative Housing Society, Karachi. It was further stated that the unauthorized construction was being raised without obtaining approval from KBCA. Notice for.. unauthorized construction was issued and demolition action was also taken. There was political pressure and each time law and order situation was created by the owner of the plot. Recently demolition was taken continuously for 3 days and roof of the 7th Floor and columns were damaged/demolished it was further stated that no regularization plans were being approved as per recent policy. It was brought to the notice of Court that C. P. No.730/ 1998, 1730/ 1998, 769/ 1998, 179/ 1999 were filed in respect of same property and therefore, on 12-3-1999 all these petitions were directed to be fixed together.
6. As the respondents Nos.2 and 3 were avoiding the service of notice, therefore, the petitioner submitted an application under section 151, C, P. C. being C. M. A. No.1037/1999 on 4-3-1999. It was prayed that the building which was being illegally constructed may be attached.
7. On 20-5-1999 a Division Bench of this Court passed, the order:--
"20-5-1999 Khawaja Shamsul Islam, Advocate for Petitioner.
Mr. Raja Sikandar Khan Yasir, Advocate for Respondent No. 1....
(1) As respondents Nos.2 and 3 could not be served with the notice in the ordinary manner and apparently they are avoiding service of notice, let service be effected by way of publication in Daily Jang for a date in office.
(2) It is contended that construction of the building in respect of which building plan was rejected by KBCA has been raised on the basement, ground plus seven storeys as reflected in Nazir's inspection report, dated 1-2-1999 in C.P. No.D-730/1998 as well as in parawise comments of KBCA. Since the entire construction appears to have been raised without any approval, petition is admitted to regular hearing.
(3) In view of the reasons admitting the petition to regular hearing Nazir is directed to attach the building forthwith and appoint two Chowkidars at the entrance of the petitioner.
(4) In view of the order at Serial No.3 further process of .the construction must come to a halt, but till further orders respondents. Nos.2 and 3 are restrained from creating third party interests in respect of the project in any manner. Let a copy of order be sent to sub-Registrar of the properties concerned as well as Karachi Water and Sewerage Board, K.E.S.C. and Sui Southern Gas for information and necessary action."
8. In pursuance of order, dated 20-5-1999, the Nazir attached the building with the police assistance, as the labourers working at the site refused to stop the work on the directions of Nazir. At the time of attachment entire building was found unoccupied as the building was not in such a condition that it could be occupied by any body. Two Chowkidars were posted by the Nazir and the attachment order was pasted at the conspicuous places. According to Nazir's report, the elevation of building was complete in all respects while flooring and plastering work was going on.
9. Even after passing of above order and service of notice on the respondents Nos.2 and 3, through publication in the daily "Jang" Karachi, dated 21-7-1999, the respondents Nos.2 and 3 chose to remain absent.
10. On 1-6-1999, application under Order 1, rule 10, C.P.C. being C.M..A. No.2423 of 1999 was filed on behalf of (i) Mr. Muhammad Yaqoob son of Muhammad Hussain, (11) Mrs. Jafferi wife of Muhammad Hussain, (iii) Mrs. Naima Bano wife of Iqbal, (iv) Mr. Muhammad Yaqoob son of Jan Muhammad, (v) Mrs. Shenila wife of Muhammad Dawood, (vi) Mrs. Seema wife of Muhammad Hanif, (vii) Mr. Jan Muhammad son of Muhammad, (viii) Mr. Naseem Ahmed son of Naseer, (ix) Mr. Muhammad Hussain son of Esmail, (x) Mr. Muhammad Waseem son of Muhammad Hussain, (xi) Mr. Tayyab son of Muhammad Hussain and (xii) Mrs. Farida wife of Abubakar. It was stated in the application that the Intervenors be joined as respondents because owner of the plot under consideration executed sub-leases in their favour and the constructive possession of the respective plots were handed over to them and they have already paid full sale consideration of the respective flats to the owner. Another application on behalf of the Intervenors was submitted being C.M.A. No.2422 of 1999, praying to detach the properties.
11. The petitioner subsequently complained that the attachment order was being violated and the construction work was under progress. The Nazir visited the site on 28-8-1999, and found that certain alterations and additions in the construction were made after the attachment of the building. He again visited site on 1-1-2000 and found that inside the building the woodcutting was going on. He made inquiries from the persons in the neighbourhood and was informed that the construction material was being brought at night time and the construction work was -going on regularly. The Nazir requested that the parties may be put to notice and fresh inspection be directed in presence of the parties to note down the violation of the Court's order, dated 20-5-1999. However, on 8-2-2000, the learned Advocates for the parties agreed for a consent order in terms whereof the petition may be disposed of. The petition was therefore, disposed of on 8-2-2000 alongwith the listed application in the following terms:--
"Learned counsel for the parties present concede that this petition be disposed of with the directions to the K.B.C.A. respondent No.1 to perform their statutory obligations under the Rules and Regulations in respect of demolition of unauthorized construction raised over the Plot No.43/3 Maqboolabad Cooperative Housing Society, where the respondents Nos.2 and 3 are said to have been raising construction of residential-cum -commercial structure comprising of several flats, shops show rooms and Town Houses with the intention of selling and transfer the various shops, flats, show-rooms and town houses to different persons. It may be observed that the respondents Nos.2 and 3 were duly served through publication made in Daily "Jang" dated 21st July, 1999 but none has appeared to contest the petition.
In view of the consent of the learned counsel for the parties the respondent No is directed to perform its obligations in respect of unauthorized constructions over the above said plot. This petition stands disposed of alongwith listed application."
12. However, it appears that the chapter was not closed and the respondents Nos.2 and 3 persisted with their illegal and unauthorized act in a daredevil manner, with the result that the petitioner submitted a contempt application being C.M.A. No.633 of 2000. It was stated in the application that the respondents Nos.2 and 3 were interfering with the process of Court and have fabricated High Court's order, thereby committing the contempt of Court. It was further prayed that the respondents be directly to comply with the order, dated 8-2-2000. It was alleged that the respondents Nos.2 and 3, in collusion with the officials of respondent No.' and S.H.O. New Town Police Station, were creating hurdles in demolition of the illegal construction. It was further alleged in the affidavit accompanying the contempt application that the respondent No.2 and his sub-attorney Saleem produced a fake, forged and fabricated stay order on 16-2-2000 which was copied out from some other case and presented before the demolition team in order to stop and obstruct the demolition as ordered by this Court. It was further alleged that on one hand the respondent No.1 and the other executive authorities such as S.S.P. (East). D.C., Karachi (East), S.D.M. Jamshed Quarters, S.H.O. New Town, Police Station, and Chief Controller, KBCA, were delaying the demolition of building in violation of the order passed by this Court and on the other hand the respondents Nos.2 and 3 were carrying on the construction work by employing a work force of over hundred and fifty workers The comments were called for froth the respondents/alleged contemners. The S.S.P. and S.D.M. submitted that they were prepared to fully cooperate with the K.B.C.A. in execution of the demolition order passed by this Court. However, the petitioner failed to appear on 22-5-2000 with the result that the contempt application was dismissed for non-prosecution.
13. Compliance report was submitted by Syed Mehmood Ali, Controller of Buildings Circle "F" K.B.C.A., on 25-4-2001 stating as follows:--
"That the proposed building plan was submitted by the Builder through his Special. Attorney Mr. Abdul Karim which was not approved and the owner was informed accordingly. The owner continued the construction under the shelter of Gunda Gardi with the result that complaint was lodged to the S.D.M. and S.H.O. concerned to provide police force but the same was not provided. Letters were sent to the utility agencies no provide utility connections to the said building besides the public at large was informed through newspapers regarding unauthorized construction on the plot in question with direction not to purchase any flat in the said building. The Sub-Registrar was also requested not to execute sub-lease in respect of property in question. It is also submitted that the demolition action was taken on 10 th , 11 th , and 13 th November, 1998 and 7 th Floor but the owner in order 'to frustrate further demolition action filed C.Ps. Nos.D-1730/1998 and D-1769/1998 and suits Nos.1619/1998 and 583/1999 in this Honourable Court. It is further submitted that the C.P: under reference was filed before this Honourable Court by Maqbool C.H.s. against K.B.C.A., Muhammad Dawood and Abdul Karim and' the property in question was attached and taken into custody by the Nazir of this Honourable Court on 25-5-1999 in compliance to order, dated 20-5-1999 passed by this Honourable Court with the result that the said property being lying vacant was remained in the custody of Nazir for about eight months. On 8-2-2000 this Honourable Court allowed the petition under reference with direction to respondent/K.B.C.A. to demolish unauthorized construction and to submit compliance report. Similarly in Suit No.1619/1998 the Single Bench of this Honourable Court directed the K.B.C.A. to demolish unauthorized construction and to submit compliance report vide order, dated 26-8-1999, 1-9-1999 and 7-9-1999 passed in the Suits Nos.583/1999 and 1619/1998. In compliance to the orders passed by this Honourable Court and orders passed by Honourable Single Bench in Suits Nos.583/1999 and 1619/1998. The K.B.C.A. started demolition action but during the process of demolition the owner, builder on 6-3-2000 produced forged and fabricated copy of status quo order alleged to have been passed by this Honourable Court in C.P. No. D-268/2000 with result that demolition action was stopped by the K.B.C.A. but after careful perusal of alleged status quo order, dated 6-3-2000 created doubts with the result that the same was verified by the Registrar of this Honourable Court who confirmed that the said order provided by the Builder is forged/fake and directed to D. C. B, of K. B. C. A. to lodge F. I. R. against the persons who submitted copy of the said forged order vide letter, dated 8-3-2000 whereby the K.B.C.A. lodged F.I.R. No.32 of 2000 with New Town Police Station, Karachi. The demolition action was under process but the owner/builder in collusion with the so-called allottee again attempted to restrain the K.B.C.A. from demolition of the building with mala fide intention through Petition No.259 of 2000 with sole objective to create obstruction in the administration of justice in execution of order, dated 8-2-2000 passed in the petition under reference and order passed in Suits Nos.583 of 1999 and 1619 of 1998.
It is also submitted that no stay is granted in C.P. No.D-259 of 2000 which is pending adjudication. It is further submitted that the builder in collusion with the allottee Mrs. Fareeda filed Suit No.330 of 2000 on 7-3-2000 for declaration and permanent injunction in respect of the said building against the K.B.C.A. and the builder but the same was withdrawn on 10-3-2000 as it had become in fructuous due to the commencement of demolition action by K.B.C.A. It is specifically pointed out that now the Builder in collusion with the present plaintiff/allottee/purchaser of Flat No.603, at 6th Floor has filed Suit No. 1444 of 2000 by concealing all material facts with mala fide intention to create obstruction in the administration of justice and obtained status quo order by misleading and on misrepresentation of acts. It would not be out of place to submit here that Muhammad Yaqoob and others challenged order, dated 8-2-2000 passed in this petition before the Honourable Supreme Court of Pakistan in Civil Petition No.188-K of 2000 but the said petition was dismissed by the Supreme Court of Pakistan vide order, dated 13-7-2000.
14. The copies of various orders referred to in the above paras were produced and it was further stated as follows:--
"It is respectfully submitted that in compliance of the order of this Honourable Court the K.B.C.A. started demolition action on 11-3-2000 and onward against unauthorized construction of the building in question and completely demolished 6th and 7th floors and remaining parts of the building have mostly been demolished and damaged in all respect with the result that Technical Standing Committee on Dangerous Buildings of K.B.C.A. after inspection has declared the building as dangerous and recommended that the same be demolished by approved experienced demolition contractors under strict supervision and as such at present the structure is standing at site which is to be removed by Technical Experts so as to avoid untoward incidence to the neighbouring building."
15. Alongwith the compliance report, various photographs showing the demolition of building were attached. The photographs showed that some floors were totally demolished while remaining floors were demolished to the extent of construction other than pillars and beams. Photo copy of the report of Technical Committee containing recommendations reads as follows:--
"The building has been inspected. Partly structure has already been demolished and remaining demolition upto ground, shall be dangerous to demolish except with involving experienced demolition contractors of K.B.C.A. enlisted for dangerous buildings for the purpose and safety of the remaining structure is declared dangerous to be demolished by approved K.B.C.A. contractors under strict supervision of Zone's C.O.B. Provided the action does not involve any contempt of Court."
16. The report further contains that two floors were completely demolished, slabs of all floors were cut with gas-cutter. It is further contained in the report that the entire building was declared dangerous and was not replaceable or repariable. The entire building was unauthorised and entire building was constructed without approval and under the shelter of "Gunda Gardi".
17. On submission of compliance report, the following order was passed by a Division Bench of this Court.--
"The Chief Controller and the concerned Controller of Buildings are present in Court. A compliance report accompanied by photographs has also been placed on-record today which indicates that substantial demolition work has been carried out and according to the Chief Controller of Buildings, the building is no longer habitable, however, the original structure has not been removed. The Chief Controller, nevertheless, has given an assurance that though it might not be possible, within the existing resources available with him to erase the entire building on the ground, he will definitely take further action s was to ensure that reconstruction becomes almost impossible and the action taken serves as deterrent for others.
In view of the above assurance we do not think any further action is necessary."
18. The above narration of facts shows that, even after a long drawn and protracted proceedings and several orders of this Court for demolition of the building passed in Suit No. 1619 of 1998 and C.P. No. D-1652 of 1998 the writ of law remained ineffective and the cancer of corruption and the evil forces with single purpose of amassing wealth in whatsoever manner, appears to have defeated the rule of law, so far. It is a classical case which demonstrates as to what extent the cancer of corruption has spread and has taken roots: It can be said without any fear of contradiction that the majority of the authorities are in total grip of the menace of cancerous corruption and very strong actions are required to restore the writ of law and respect of the legal system. The fabric of the legal system appears to have been torn entirely and requires to be rewoved by the use of rigorous force which may demonstrate that the evils of corruption and illegalities shall never be allowed to become beneficial.
19. As already observed, the building which was constructed in the words of Compliance report submitted by K.B.C.A. under the shelter of "Gunda Gardi" was not demolished and the nefarious designs of the evil forces continued to work. The result was that the petitioner again approached this Court with a contempt application being C.M.A. No.861 2003, alleging contemptuous acts on the part of (i) respondent Muhammad Dawood son of Jan Muhammad, (ii) Abdul Karim Khan son of Jamiat Khan, (iii) S.A. Nasir, Chief Controller of Building, and (iv) Manzoor Qadir, Controller of Building Zone XXVIII, Circle "F", K.B.C.A. It was stated in the affidavit in support of the contempt application that although F.I.R. was lodged against contemners Muhammad Dawood and Abdul Karim Khan for producing forged order of the Court, neither they were arrested nor any action was taken against them. The illegal construction was also demolished partly with the result that the contemners Muhammad Dawood and Abdul Karim Khan, again started constructing the same building and the contemners S.A. Nasir, Chief Controller of Building and Manzoor Qadir, Controller of Building Zone XXVIII, Circle "F" instead of preventing the reconstruction of building started providing help to them. It was further alleged that a building which was declared dangerous was being resurrected, which may collapse at any time. It was submitted that until and unless the building in question was attached the acts constituting contempt of Court shall not be stopped.
20. Brigadier (R) S.A. Nasir, Chief Controller Building, filed counter-affidavit denying the commission of any act constituting contempt of Court. He stated in the counter-affidavit that the compliance report was submitted on 25-4-2001 and after promulgation of new Regularization Ordinance, 2002, the owner submitted the regularization of existing building in accordance with the new Ordinance, 2002. The request of the builder was referred to the Standing Committee on Dangerous Buildings (K.B.C.A.) for re-inspection. The said Committee consists of prominent and renowned engineering experts from out side the K.B.C.A. and within the K.B.C.A. Said Committee recommended intense curative work subject to various conditions obligatory for submission of detailed remedial structural building plans to the K.B.C.A. duly vetted for deliberation. The copies of the request of the owner and reports in respect of vetting of design, drawings and remedial measures of building were produced. The letter dated 1 st March, 2003, written by owner to the Deputy Controller of Building-1, Gulshan Town, K.B.C.A., reads as follows:--
"To
The Deputy Controller of Building-1,
Gulshan Town, K.B.C.A., Karachi.
Sub. Plot No 43 (Summa Terrace) Block-3 Maqbool C.H. Society K.C.H Society (Union) Limited Karachi.
Dear Sir,
Further to our letter, dated 15 th January, 2003, we are pleased to forward herewith vetted design calculations and drawings duly vetted and signed by Engineer Khalil Ahmed and Engineer Arif Kasam and also by Engineer Saddiq Essa.
(1) 2 sets of original Design Calculation files O.C. 1/4 to 4/4 Nos.P.-1 to 700.
(2) 2 sets of Additional Calculation files A.C. 1/2 and 2/2 Nos.P 701 to 1072.
(3) 5 sets of Additional Drawings 28 Nos. St.-1 to St.28.
(4) 5 sets of Additional Drawing showing remedial measures 5 Nos. St.-29 to St.-33.
(5) Two copies of vetting proforma.
(6) Two copies of summary of vetting report by all the three Engineers.
(7) Two copies of non-destructive tests.
(8) Two copies of Soil Investigation Report.
Items Nos.5 to 8 are all contained in a separate folder 2 Nos.
Please acknowledge receipt of above documents.
Thanking you,
(Owner) Encl. As listed 1-8."
21. It was further stated that as per recommendations of the Standing Committee, for dangerous building and for the purpose of finalizing the regularization of building under new regularization Ordinance, the permission for repair was accorded on the basis of consultants report. After completion of repair work as per recommendations of the Standing Committee, the matter was again submitted before Committee who after examination of structural remedial work, declared the entire building as safe and fit for habitation. It is further alleged that the regularization plan has been considered in accordance with the provisions of Sindh Regulation and Control (Use of Plots and Construction of Buildings), Ordinance, 2002, as the building officer repair is found physically and structurally sustainable/refurbished arid revamped and accomplished all structural and codal requirements. Copies of permission to grant remedial work dated 21-10-2002 and letter of the Structural and proof Engineer dated 4 th April, 2003, read as follows:-
"NO.KBCA/DCB-XXVIII/REG/03/2002/909, dated 21-10-2002
To
Mr. Dawood Jan Muhammad (Attorney)
Plot No.43, Block-3, Maqbool C.H.S.
K.B.C.A. Union Ltd, Karachi .
Subject. Permission to grant remedial works in respect of Plot No.43, Block-3 Maqbool C.H.S. K.C.H.S. Union Limited, Karachi
Reference. (i) Re-inspection by Standing Committee on Dangerous Buildings
(ii) Orders of Chief C.O.B. dated 21-10-2002.
With reference to above subject I am directed to inform you that your request for remedial measures has been considered by competent authority as per recommendation of dangerous Committee decision.
Your are directed to carry out remedial measures on the existing structure under the supervision of structure Engineer, strictly according to submitted Regularization plans/vetted drawings and design. This permission does not allow the new construction.
If any mishap/accident occur during remedial work the owner and lic. Engineer/Lic. Architect will be fully responsible for the same.
(Sd.) Dy. Controller of Buildings Zone-XXVIII.
C.C. to (1) C.O.B. (Sr.) K.B.C.A.
(2) Secretary, Standing Committee on D.B./C.O.B.(J).
(3) C.O.B. (F) K.B.C.A.
(4) Mr. Siddique Essa, Licence Engineer
With an ,advise to submit report of completion of
(5) Mr. Riaz Ahmed, Licence Architect remedial measure as and when completed. The case shall be Forwarded to Standing Committee on Dangerous Buildings for further instructions."
"Mr. Manzoor Qadir, Controller of Building, Gulshan Town, K.B.C.A. Civic Centre, Karachi.
Sub. Remedial measures Carried out on Plot No.43 Maqbool Cooperative Housing Society.
Dear Sir,
With reference to the above it is pointed that duly vetted structural design and drawings including remedial measures as proposed and vetted by proof Engineer Arif Kasim of Arif Associates and Engr. Khalil Ahmed of Messrs Loya Associates has been submitted to K.B.C.A.
In this regard it is submitted that entire work of remedial measures on the existing structure is being carried out under our supervision strictly according to above mentioned vetted drawings and design. All in accordance with the responsibility given to us by K.B.C.A. Letter No.KBCA/DC- XXVIII/REG/03/2002/909, dated 21-10-2002 addressed to owner with a copy to undersigned.
The work carried out uptil now has been satisfactory and we are responsible for its stability.
Thanking you.
Yours truly,
(Engr. M. Siddiq Essaa) Structural and Proof Engineer. c.c. Secretary, Standing Committee."
22. Similar counter-affidavit has been filed by Manzoor Qadir, Controller of Building.
23. Alleged contemner No. 1, Muhammad Dawood son of Jan Muhammad has also denied all the allegations of committing contempt in his counter-affidavit. He has stated that the building was demolished to the extent that it was made unfit for habitation. After promulgation of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, and in view of section 5 thereof, he submitted an application for regularization of the building to the respondent No.1. He has produced copy of application dated 14-1-2002 submitted in Zone XXVIII, K.B.C.A., for completion and regularization. He has further produced a copy of challan dated 12-1-2002 through which he deposited Rs.3,37,426 under various heads. He has further produced copy of challan dated 9-4-2003, in the sum of Rs.11,700 and another challan of Rs.33,66,731 as third monthly instalment for completion plan fee and two other challans in the same amount of the same date for first monthly installment and second monthly installment. He has also produced copy of K.B.C.A. letter dated 21-10-2002, whereby permission for remedial work was granted. He has produced copy of the meeting of Technical Committee, dated 8-4-2003, whereby the building under consideration was declared as safe and fit for habitation. He has further produced the copy of letter, dated 21-4-2003, whereby the construction of basement + ground + 7. upper floors have been approved on a category of plot which is residential in status. It is specifically stated in this letter that the building plan attached with the letter is approved and Muhammad Dawood son of Jan Muhammad is permitted to carry out construction on the said plot and that the permission shall not be used to other than the use approved by the authority and according to the terms and conditions of allotment/lease. It is also stated that "at present building is not complete in all respects. You are hereby directed to complete the structure in accordance with the approved regularization plan".
24. During the pendency of this contempt application another application was submitted by the petitioner being C.M.A. No.3162 of 2003 under Order 40, rule 1, C.P.C., read with Order 39, rules 1 and 2, C.P.C. It was prayed that since earlier orders of the Court were being flouted and the lives of the persons living in the locality is in danger therefore, the building under consideration may be attached. Alleged contemner Muhammad Dawood, filed counter-affidavit with same averments as made in the counter-affidavit to C.M.A. 861 of 2003. In the meanwhile Official Assignee was appointed Commissioner to visit building. He visited the building on 25-7-2003 and reported that the building was complete but the completion certificates were not issued. Advocate for contemner No. 1, filed objections stating that the K.B.C.A. had issued completion on 14-7-2003. In the Completion Certificate, dated 14-7-2003, it was stated that it was is issued in continuation of previous approval of regularization plan, dated 21-4-2003.
25. An application under Order 1, rule 10, C.P.C. being C.M.A. No.5783 of 2003 was also submitted on behalf of 14 persons allegedly residing in the flats on different floors of the building under construction praying that they may be impleaded as co-respondents. They alleged that they were bona fide purchases of the apartments in the building known as "Sumya Terrace" and have come to know that the petitioner has challenged the legality of the construction of building and therefore, being holders of vested rights were entitled to be joined in the proceedings.
26. During the pendency of earlier contempt application, another contempt application being C.M.A. No.45 of 2004 was submitted by the petitioner praying that Sumya Terrace be sealed and attached and the builder Muhammad Dawood, Chief Controller of Buildings, S.A. Nasir, Controller of building, Manzoor Qadir and Sub-Registrar, T. Division (XI), Ghulam Haider Shah, be detained for wilful and contumacious disobedience of the order passed by this Court dated 25-5-1999, 24-4-2001, 15-7-2003, 29-9-2003 and 2-10-2003. Notices were issued to the alleged contemners. Yet another application under Order 40, rule 1, read with section 151, C.P.C. being C.M.A. No.46 of 2004 was filed in January, 2004, praying the Nazir of this Court be appointed Receiver of the building known as Summaya Terrace with powers to seal the building and to remove the persons occupying Flats Nos.701, 401, 205, 605, 703, 304 for 306, 602, 505, 203, 201, 303, 603, mentioned in the Official Assignee report dated 7-8-2003 as their occupation was violative of orders mentioned in the contempt application. It was further prayed that the building which was illegally constructed be ordered to be demolished in line with the order dated 8-2-2000 passed by this Court. Another application under section 151, C.P.C., being C.M.A. No.47 of 2003, was filed praying for a direction to the K.E.S.C. and Sui Southern Gas Company, to immediately disconnect the electricity and Sui-Gas of the building constructed over Plot No.43/3, Maqboolabad Cooperative Housing Society.
27. C.M.As. Nos. 861 of 2003 and 3162 of 2003 came for hearing on 15-7-2003 and following order was passed:--
"This is an application under Order XL, rule 1 read with Order, XXXIX, rules 1 and 2, C.P.C. praying for attachment of the construction on Plot No.43/3, Maqboolabad Cooperative Housing Society known as `Summaya Terrace', owned by respondents Nos.2 and 3 on the basis of the orders of this Court dated 8-2-2000 and 20-5-2003 and for other relief. Mr. Malik opposes the; grant of any relief because K.B.C.A. has issued a Regularization Order, dated 21-4-2003 which permits, respondent No.2 to construct basement + Ground + 7 Upper Floors only subject to the conditions mentioned therein
Mr. Sarfraz Ahmed, learned counsel for respondent No. 1 states that among others, the position of K.B.C.A is stated in paragraph 6 of the counter-affidavit to the contempt application filed by the petitioner.
On perusal of the Regularization Order of the building it transpires that the Regularization is subject to certain conditions, one of which is that the `owner is bound to get the completion/occupancy plan approved from the Authority before occupation of the building. Mr. Malik, learned counsel for respondent No.2 state that he is not in a position to state whether a completion/occupancy plan has been obtained. The answer is not satisfactory.
As far as this Court's order dated 25-4-2001 is concerned, the answer of K.B.C.A. prima facie is mala fide because on the aforesaid date the Controller, K.B.C.A. had given the following undertaking to the Court:
`The Chief Controller and the concerned Controller of Buildings are present in Court. A compliance report accompanied by photographs has also been placed on record today which indicates that substantial demolition work has been carried out and according to the Chief Controller of Buildings, the building is no longer habitable, however, the original structure has not been removed. The Chief Controller, nevertheless, has given an assurance that though it might not be possible, within the existing resources available with them to erase the entire building on the ground, he will definitely take further action so as to ensure that reconstruction becomes almost impossible and the action taken serves as deterrent for others.
In view of the above assurance we do not think any further action is necessary'.
From the above order and circumstances reflected from the documents on the file it is obvious that the Chief Controller did not fulfill his undertaking which is, prima facie, disobedience of the Court's order liable to punishment.
In view of the above circumstances, it would be in the interest of justice that some remedial action is taken. Accordingly, respondents are restrained from carrying on any further construction in the building except in accordance with the Revised Approved Plan and on their own risk and cost and create no third party interest therein provided the regularization is strictly in accordance with Building Rules and Regulations subject to final determination by this Court.
For ensuring compliance of the above order, Official Assignee is appointed Commissioner to visit the building, inspect the construction therein, investigate the nature of the occupancy, take photographs, take other necessary action for proper fulfilment of the order and submit his report."
28. This application alongwith the report of Official Assignee came for consideration on 29-8-2003 and the following order was made:--
"(1) Official Assignee's report dated 7-8-2003 is taken on record. Mr. Malik requests for time to file objections to the same. Request granted. He shall supply an advance copy of objections to Mr. Khawaja Shamsul Islam at least five days before the date of hearing.
(2) and (3) After hearing the learned counsel and perusing the record, the order dated 15-7-2003 is partly modified and the respondents are restrained from carrying on any kind of construction or finishing work of the property in question, creating any third party interest or allowing any further occupation of the premises."
29. Objections to the Official Assignee's Report were filed on behalf of builder. Alongwith the objections dated 3-9-2003, a Completion and Occupancy Certificate dated 14-7-2003 was filed stating that the reconstructed building consists of Basement + Ground + 7 Upper Floors. This Regularization/Completion Plan was issued by Safdar Ali Magsi, Deputy Controller of Buildings K.B.C.A. Gulshan Town. It was stated in the certificate that, Dawood Jan Muhammad, attorney of the owner was permitted to occupy the building and the completion plan attached with the certificate was approved. A note was appended as follows:--
"This approval is issued in continuation to previous approval of regularization plan vide No.BCA/DCB-I/GIT/REG/03/2002/102/2003, dated 21-4-2003. "
30. On 2-10-2003, two applications again came for hearing and the facts were recapitulated. Certain directions were given. For the sake of convenience, the order, dated 2-10-2003 is reproduced below:--
"2-10-2003 Mr. Khawaja Shamsul Islam, Advocate for Petitioner.
Mr. Mirza Sarfraz Ahmed, Advocate for respondent No.1 (K.B.C.A).
Mr. Adrian Iqbal, Advocate holding brief for Mr. Munir A. Malik, Advocate for Respondent No.2
Mr. Abbas Ali, Additional Advocate-General, Sindh.
(1) The Official Assignee's Report, dated 7-8-2003 has already been placed on record vide this Court's order, dated 29-8-2003. No further order is now necessary. The report shall be considered as and when necessary.
(2) and (3) This case has a checkered history.
On 8-2-2000 in presence of Khawaja Shamsul Islam, learned counsel for the petitioner, Mr. Raja Sikandar Yasir, learned counsel for K.B.C.A., Mr. Muhammad Ibrahim, Advocate holding brief for Mr. Muhammad Sadiq, Advocate, the learned counsel present conceded that the petition be disposed of with the direction to K.B.C.A. to perform their statutory obligation under the Rules and Regulations in respect of the demolition of unauthorized construction raised on Plot No.43/3, Maqboolabad Cooperative Housing Society where the respondents Nos.2 and 3 were said to have been raising construction of residential-cum commercial structure comprising of several flats, shops, show room, and Town housing with the intention of selling and transferring the same to different persons. It was observed that respondents Nos.2 and 3 were duly served through publication made in daily `Jang' dated 21 st July, 1999 but none had appeared to contest the petition. In view of the consent of the counsel for the parties K.B.C.A. was directed to perform its obligations in respect of unauthorized construction on the said plot.
On 6-3-2000, learned counsel for K.B.C.A. undertook to submit compliance report in respect of the order, dated 8-2-2000 passed by this Court.
On 25-4-2001 Syed Mehmood Ali, Controller of Buildings, Circle "F" K.B.C.A. filed a compliance report, which reads as follows:--
The respondent/K.B.C.A. respectfully presents its report in compliance in order dated 8-2-2000 in addition to the counter affidavit, dated 10-4-2000 submitted by the Chief Controller of Buildings (Mr. Akhtar Iqbal Usmani) in compliance to order of this Honourable Court:--
(1) That the proposed building plan was submitted by the Builder through his Special Attorney Mr. Abdul Karim which was not approved and the owner was informed accordingly. The owner continued the construction under the shelter of Gunda Gardi with the result that complaint was lodged to the S.D.M. and S.H.O. concerned to provide police force but the same was not provided. Letters were sent to the utility agencies for not providing utility connections to the said building besides the public at large was informed through newspapers regarding unauthorized construction on the plot in question with direction not to purchase any flat in the said building. The Sub-Registrar was also requested not to execute sub-lease in respect of property in question. It is also submitted that the demolition action was taken on 10 th , 11 th , and 13 th November, 1998 at 7 th Floor but the owner in order to frustrate further demolition action filed C.Ps. Nos.D-1730 of 1998 and D-1769 of 1998 and Suits Nos. 1619 of 1998 and 583 of 1999 in this Honourable Court. It is further submitted that C.P. under reference was filed before this Honourable Court by Maqbool C.H.S. against K.B.C.A., Muhammad Dawood and Abdul Karim and the property in question was attached and taken into custody by the Nazir of this Honourable Court on 25-5-1999 in compliance to order, dated 20-5-1999 passed by this Honourable Court with the result that the said property being lying vacant was remained in the custody of Nazir for about eight months. On 8-2-2000 this Honourable Court allowed the petition under reference with direction to respondent/K.B.C.A. to demolish unauthorized construction and to submit compliance report. Similarly in Suit No.1619 of 1998 the Single Bench of this Honourable Court directed the K.B.C.A. to demolish unauthorized construction and to submit compliance report vide order, dated 26-8-1999, 1-9-1999 and 7-9-1999 passed in the Suits Nos.583 of 1999 and 1619 of 1998. In compliance to the orders passed by this Honourable Court and orders passed by Honourable Single Bench in Suits Nos.583 of 1999 and 1619 of 1998. The K.B.C.A. started demolition action but during the process of demolition the owner, builder on 6-3-2000 produced forged and fabricated copy of status quo order alleged to have been passed by this Honourable Court in C.P. No.D-268 of 2000 with result that demolition action was stopped by the K.B.C.A. but after careful perusal of the alleged status quo order, dated 6-3-2000 created doubts with the result that the same was verified by the Registrar of this Honourable Court who confirmed that the said order provided by the Builder is forged/fake and directed to D.C.B. of K.B.C.A. to lodge F.I.R. against the persons who submitted copy of the said forged order vide letter, dated 8-3-2000 whereby the K.B.C.A. lodged F.I.R. No.32 of 2000 with New Town Police Station, Karachi. The demolition action was under process but the owner/builder in collusion with the so-called allottee again attempted to restrain the K.B.C.A. from demolition of the building with mala fide intention through Petition No.259 of 2000 with sole object to create obstruction in the administration of justice in execution of order, dated 8-2-2000 passed in the petition under reference and order passed in Suits Nos.583 of 1999 and 1619 of 1998.
It is also submitted that no stay is granted in C.P. No.D-259 of 2000 which is pending adjudication. It is further submitted that the builder in collusion with the allottee Mrs. Fareeda filed Suit No.330 of 2000 on 7-3-2000 for declaration and permanent injunction in respect of the said building against the K.B.C.A. and the Builder but the same was withdrawn on 10-3-2000 as it had become infructuous due to the commencement of demolition action by K.B.C.A. It is specifically pointed out that now the Builder in collusion with the present plaintiff/allottee/purchaser of Flat No.603 at 6th Floor has filed Suit No. 1444 of 2000 by concealing all material facts with mala fide intention to create obstruction in the administration of justice and obtained status quo order by misleading and on misrepresentation of acts. It would not be out of place to submit here that Muhammad Yaqoob and others challenged order, dated 8-2-2000 passed. in this petition before the Honourable Supreme Court of Pakistan in Civil Petition No. 188-K of 2000 but the said petition was dismissed by the Honourable Supreme Court of Pakistan vide order, dated 13-7-2000.
Copies: of (i) Order dated 7-9-1999 in Suit No. 1619 of 1998
(ii) Order dated 6-8-1999 passed in Suit No.583 of 1999.
(iii) Fake status quo order in C.P. No. D-268 of 2000.
(iv) Letter dated 8-3-2000 of Registrar of High Court of Sindh at Karachi.
(v) F.I.R. No.32 of 2000 (P.S. New Town Karachi).
(vi) Clipping of newspapers.
(vii) Suit No. 1444 of 2000 and order dated 24-10-2000 are enclosed herewith and marked as-Annexures ("A", 'C'.', "D", "E", "F", "G" "H")
"(2) It is respectfully submitted that in compliance to the order of this Honourable Court the K.B.C.A. started demolition action on 11-3-2000 and onward against unauthorized construction of the building in question and completely demolished 6th and 7 th floors and remaining parts of the building have mostly been demolished and damaged in all respect with the result that Technical Standing Committee on Dangerous. Building of K.B.C.A. after inspection has declared the building as dangerous and recommended that the same to be demolished by approved experienced demolition constructors under strict supervision and as such at present the structure is standing at site which is to be removed by Technical Experts so as to avoid untoward incidence to the neighbouring building."
On 25-4-2001 in the presence of Chief Controller of Buildings, Brigadier Zafar Malik and Controllers of Buildings, S. Mehmood, the Court passed the following order:--
"The Chief Controller and the concerned Controller of Buildings are present in Court. A compliance report accompanied by photographs has also been placed on record today which indicates that substantial demolition work has been carried out and according to the Chief Controller of Buildings, the building is no longer habitable, however, the original structure has not been removed. The Chief Controller of Buildings nevertheless, has given an assurance that though it might not be possible, within the existing resources available with him to erase the entire building on the ground he will definitely take further action so as to ensure that reconstruction becomes almost impossible and the action taken serves as deterrent for others .
(Emphasis added)
Again K.B.C.A. failed to comply with the order of the Court and a fresh contempt application was filed (C.M.A. No.861 of 2003) giving rise to the present proceedings. The Official Assignee was appointed Commissioner on 15-7-2003 to inspect the Site and submit a report on the nature of the construction and occupancy etc. He submitted his report on 7-8-2003 which has been placed on record and objections to the same have also been filed by the contemners/respondents.
There are clear order of this Court dated 8-2-2000 directing demolition of the building and order dated 25-4-2001, when Chief Controller of Buildings assured that he would erase the entire building to the ground and would definitely take further action so as to ensure that reconstruction becomes almost impossible and the action taken serves as deterrent for others. We have also found in the Court file, a copy of the report of the Technical Committee on Dangerous Buildings of K.B.C.A. dated 26-10-2000. which states that 'the building had been inspected, part structure has already been demolished and remaining demolition upto ground shall be dangerous to demolish except with involving experienced demolition contractors of K.B.C.A.' It is astonishing to note that in spite of the undertaking given by Chief Controller of Buildings and the recommendation of the Technical Committee, the building was not demolished and the Technical Standing Committee on Dangerous Buildings of K.B.C.A. held a meeting on 8-4-2003 where the Architect and Engineer of respondents Nos.2 and 3 were called by special invitation but the petitioner was neither informed nor called to attend the meeting so that the true facts could be brought on record and appropriate action taken thereafter. Nevertheless from the report, which is haphazardly written it transpires that the committee "declared the entire building as safe and fit for habitation" and Regularization Plan was issued on 21-4-2003, which was clearly after the expiry of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance.
From the above narration of facts, it is obvious that the Chief Controller of Buildings did not fulfil his undertaking which is prima facie disobedience of this Court's order, liable to punishment. It may be added that according to K.B.C.A. report, the respondents Nos.2 and 3 resorted to all sorts of manoeuvreing and carried out the construction, in the words of K.B.C.A. under the shelter of Ghundagardi and fake and fabricated status quo order allegedly issued by this Court in C.P. No. D-268 of 2000.
On 29-8-2003, after hearing the learned counsel including Mr. Munir Malik, learned Advocate for respondent No.2, the Court's order, dated 15-7-2003 was partly modified and respondents were restrained from creating any third party interest or allowing further occupation of the buildings. In view of the history narrated above, we are of the confirmed view that the clear orders of this Court have been flouted flagrantly by K.B.C.A. and respondents Nos.2 and 3 and that in the circumstances, it would be in the interest of justice if an attachment order of the building is passed forthwith which we hereby do.
Official Assignee is accordingly directed to immediately attach the property in question and post two Chowkidars at the cost of the petitioner. Official Assignee shall be at liberty to seek police assistance without to any order from the Court, if deemed necessary by him.
We may state here that Mr. Adrian Iqbal, Advocate, holding brief of Mr. Munir A. Malik, Advocate for respondent Nos.2 had requested for adjournment on the ground of latter's illness but in view of the gravity of the matter stated above we declined the request for adjournment as this Court would not permit any one to violate its order or commit a breach of his undertaking, given to the Court.
After going through the various documents, including those referred to above, we consider it proper to call the following persons so that the correct position may be obtained and appropriate action taken in the matter. Accordingly, Mr. Mirza Sarfraz, Advocate for K.B.C.A. is directed to ensure the attendance of the following persons on the next date of hearing:--
(1) Chief Controller of Buildings, K.B.C.A.;
(2) Syed Mehmood Ali, Controller of Buildings;
(3) Deputy Controller of Buildings, who signed K.B.C.A's letter dated 21-10-2002, who shall be identified by Mirza Sarfraz;
(4) Members of Technical Committee, who attended the meeting and approved the building plan dated 8-4-2003; namely,
(i) Nominee of P.E.C. Member:
(ii) Imran Farooqi, Nominee P.C.A.T.P.;
(iii) Nominee of C.D.G.K.
(iv) Yousuf Kureshi;
(v) Syed Tasawar Ali Abedi Co-opted Member;
(vi) Mumtaz Haider, Member/Secretary;
(vii) M. Siddiq Essa, Structure Engineer;
(viii) Arif Kassam, Proof Engineer;
(ix) Khalil Ahmed Proof Engineer;
(x) Manzoor Qadir, C.O.B./T.B.C.O. concerned area;
The persons, whose names have not been mentioned and only their designations have been stated shall be identified by Mr. Mirza Sarfraz Ahmed, Advocate for K.B.C.A. who shall supply the names and address of all these persons to the office within ten days so that attendance notice may be issued to them.
Mr. Adrian Iqbal is also directed to ensure the attendance of Muhammad Dawood son of Jan Muhammad, alleged contemner No. 1.
Office shall also issue notice to Abdul Karim, respondent No.3 for personal attendance, at the address given in the title of petition. In case, the bailiff does not succeed in serving the notice in three attempts, he shall paste the notice on the outer door of his house in accordance with law. For further hearing adjourned to 5-11-2003.
The Official Assignee shall inform the occupants of the building, indicated in his report, dated 7-8-2003 about the present order and that if they continue to occupy the building, they shall do so at their own risk.
In pursuance of order, dated 2-10-2003, the Official Assignee submitted another report dated 17-10-2003, which reads as follows:--
"The Honourable Court passed order on 2-10-2003, relevant portion of the same is reproduced as under:--
`Official Assignee is accordingly directed to immediately attach the property in question and post two Chowkidars at the cost of the petitioner. Official Assignee shall be at liberty to seek police assistance without any order from the Court, if deemed necessary by him.'
(2) That in compliance with above said order of the Honourable Court, the property viz. `Summaya Terrace' on Plot No.43/3, Maqboolabad Cooperative Housing Society, Karachi which consists of basement, ground plus seven floors is now fully occupied and has been attached on 2-10-2003 by Mr. Abdullah Baloch, Staff member by pasting attachment notices on main gate and inside the building at various places in presence of Mr. Shaikh Raghib Fateh petitioner, Mr. Ali Bakhsh Lakho, Advocate for petitioner, representing Mr. Nasir J.R. Shaikh, Advocate, Mr. Muneeruddin Naib Nazim, Mr. Rafiq, A.S.-I. of New Town Police Station and Mr. Irshad Ali Khan, Supervisor of Builder. Two Chowkidars have also been appointed. Thereafter letters to District Registrar, Karachi and Maqboolabad Cooperative Housing Society, Karachi have also been issued about the attachment with request to ensure that the property may not be allowed to be sold, transferred or mortgaged in any manner whatsoever without the prior permission of the Honourable Court.
(3) It is further submitted that Mr. Shamsul Islam, Advocate is of the view that occupants of the building may be evicted with police aid granted by the Honourable Court as per order dated 2-10-2003. The Official Assignee did not agree with his suggestion and made the attachment as mentioned above. However, matter is placed before this Honourable Court for further orders as deemed appropriate."
31. The Advocate for petitioner filed objections to the report of Official Assignee. It was stated in the objections that the completion certificate dated 14-7-2003 was back dated. It was averred that if the completion certificate was issued on 14-7-2003, then how Safdar Ali, Deputy Controller Building K.B.C.A., stated before Official Assignee on 25-7-2003 that no completion certificate was issued.
32. On 18-12-2003, the two applications again came for consideration. The applications were partly heard and the following order was passed:-
18-12-2003
Mr. Khawaja Shamsul Islam, Advocate for Petitioner.
Mr. Shahid Jamiluddin, Advocate alongwith Mr. Mumtaz Haider, C.O.B./Sect.
Mr. Manzoor Qadir, C.O.B.
Mr. Iftikhar Kaimkhani, C.O.M.P.G.O. C.D.G.K.
Mr. Siddique Essa Structure Engineer.
Mr. Yousuf Kureshi.
Mr. Tasawar Abidi.
Mr. Imran A. Farooqui.
Mr. Arif Kasam.
Mr. Khalil Ahmed.
Mr. M. Faheem, D.C.B.
Mr. Asim Manzoor Khan, Advocate, alongwith Brigadier (R)
A.S. Nasir, Chief Controller of Buildings, K.B.C.A.
Mr. Adrian Choudhry, Advocate for Respondent No.2.
Mr. Muhammad Dawood.
Mr. Farogh Naseem, Advocate for Intervenor.
1 and 2 . Mr. Khawaja Shamsul Islam and Mr. Shahid Jamiluddin waive notice subject to the condition that Mr. Farogh Naseem shall supply copies of the applications alongwith Annexures which the latter undertakes to do during the course of the day.
(3) Mr. Kh. Shamsul Islam has submitted his arguments. For arguments by other counsel adjourned to 22-12-2003 at 11-00 a.m.
(4) Adjourned to 22-12-2003 at 11-00 a.m.
Mr. Adnan Choudhry is directed to place on record and supply copies of General Power of Attorney and Special Power of Attorney of his client Muhammad Dawood and also supply copies of the same to Mr. Kh. Shamsul Islam and Mr. Shahid Jamiluddin before the next date of hearing.
On the request of Mr. Shahid Jamiluddin, Advocate for K.B.C.A. and Mr. Asim Mansoor Khan, personal attendance of Brigadier (R) A.S. Nasir, Chief Controller of Buildings, K.B.C.A., is dispensed with till further order.
All the restraining orders passed earlier shall continue including the order of personal attendance except Brigadier (R) A.S. Nasir, Chief Controller of Buildings, K.B.C.A:"
33. The applications were being heard by a Division Bench comprising of S.A. Sarwana and Muhammad Mujibullah Siddiqui, JJ., S.A. Sarwana, J. retired on superannuation and thereafter the Bench was reconstituted by the Honourable Chief Justice and the applications were heard by use.
34. Before hearing of the applications enumerated above, an application under section 151, C. P. C. being C. M. A. No. 188 of 2004 was submitted on behalf of Ghulam Haider Shah, Sub-Registrar seeking vacation of order, dated 9-1-2004, whereby N.B.Ws. were issued against him on account of his absence. The absence of Ghulam Haider Shah was condoned with the result that C.M.A. No. 188 of 2004 stands disposed of and no further order is required thereon.
35. A resume of the above facts shows that, the remaining six applications can be divided in four categories; (1) contempt applications C.M.A. No.861 of 2003 and C.M.A. No.45 of 2003, (2) Applications for attachment and demolition of the building C.M.A. No.3162 of 2003 and C.M.A. No.46 of 2004 (3) Application on behalf of Intervenors seeking permission to join the proceedings, C.M.A. No.5783 of 2003, (4) Application for directions to K.E.S.C. and Sui Southern Gas Company, seeking direction for immediate disconnection of electricity and Sui-gas. C.M.A. No.47 of 2004.
36. We have heard all the learned advocates forte parties. In view, of the order proposed to be made presently, on the applications in category No.(2), no directions are required as sought for in C.M.A. No.47 of 2004, in category No.4 above, for the reason that while making compliance of the directions on the applications in category No.2 the K.B.C.A. shall act in coordination with K.E.S.C. and Sui Southern Gas Company. The purpose of this application shall be served.
37. Now we take up C.M.A. No.5783 of 2003 falling in category No.(3), above. The learned counsel for the Intervenors has submitted that the Intervenors have purchased the apartments in the building under consideration. According to him they are bona fide purchasers in good faith and therefore, they are entitled to be impleaded in these proceedings.
38. On the other hand Mr. Khawaja Shamsul Islam, learned counsel for the petitioner has submitted the similar application being Miscellaneous Application No.2422 of 19,99 was submitted on 1-6-1999 during the pendency of petition which was not allowed and in the presence of Advocate for Intervenors it was ordered on 8-2-2000 with the consent of, all the advocates present including the Advocate for Intervenors that the petition be disposed of with the directions to K.B.C.A. to perform their statutory obligations under the rules and regulations in respect of demolition of unauthorized construction. He has further pointed out that on 25-4-2001, when the compliance report was submitted the learned counsel for the then Intervenors was present and in his presence it was directed that the original structure be removed so as, to ensure that reconstruction becomes almost impossible and the action taken serves to be deterrent to others. Mr. Khawaja Shamsul Islam, has further contended that all these orders were passed without impleading the Intervenors as party. He has submitted that when the application under Order 1, rule 10, C.P.C. was not allowed during the pendency of main petition the question of impleading the Intervenors does not arise in these proceedings which are consequential in nature. He has further submitted that the application has been submitted for procrastinating the matter and causing delay. He has maintained that all the sub-leases produced in support of the application are fake and concocted document which have been prepared in connivance with the Sub-Registrar. He has pointed out that in the earlier application under Order 1, rule 10, C.P.C. being C.M.A. No.2423 of 1999, photocopy of a sub-lease in respect of apartment No.303 and 3rd floor was produced which was allegedly executed by Special Sub-Attorney Mr. Saleem Hassan Kapadia, who was allegedly authorized by Dawood son of Jan Muhammad, as attorney of Mr. Khalid Siddiqui, showing floor area of 1700 sq. feet. With the present application another Indenture of Sub-lease allegedly executed on 20th September, 2003, in respect of the same apartment showing the floor area of 1100 sq. feet has been produced. The earlier Sub-lease for apartment No.303, available on record is in favour of Mrs. Shanilla wife of Muhammad Dawood, the respondent No.2, while the second Sub-lease executed by respondent No.2, Dawood son of Jan Muhammad is in favour of Muhammad Ashfaq son of Muhammad Younis. Mr. Khawaja Shamsul Islam, has next argued that by now, it stands settled by various pronouncements of Honourable Supreme Court, that if a building has been unauthorizedly constructed, a person acquiring any right or interest in such building can acquire no better title than vested in the builder and any decision in respect of the building against the builder shall be binding on all the persons acquiring any right or interest in such building and the purchases have no right independent of their own and therefore, are not required to be necessarily impleaded as party in any proceedings pertaining to such unauthorized construction. It .is pertinent to note that the main petition in this case was disposed of on 8-2-2000, with the order for demolition without granting application under Order I, rule 10, C.P.C., submitted by the Intervenors. This order was challenged by the Intervenors before the Honourable Supreme Court of Pakistan, in Civil Petition No.188/K of 2000. The Honourable Supreme Court vide its order, dated 13-7-2000 dismissed the civil petition and upheld the order passed by this Court.
39. I am persuaded agree with the contention of Mr. Shamsul Islam, to the extent that the decision in respect of the building made A against the builder shall be binding on the persons occupying the property through him and are not entitled to be impleaded as party. It would not be appropriate to make any observation about the genuineness or otherwise of the Sub-leases produced during the pendency of the petition and during the present proceedings for the simple reason that the question of fact cannot be decided in such proceedings. Consequently, we are of the opinion that the Intervenors have no independent right to be impleaded as parties for contesting the issue pertaining to the authorized or unauthorized construction of the building and the builder as well as K.B.C.A. who are the necessary and proper parties are already before the Court. The application under Order 1, rule 10, C.P.C. stands dismissed.
40. This brings us to the second category of application, to wit, C.M.A. No-3162 of 2003 and C.M.A. No.46 of 2004 containing the prayer for attachment and demolition of building.
41. The narration of the facts in detail shows that the admitted facts are that the entire construction in existence up to 8-2-2000 was found illegal and unauthorized. The respondents Nos.2 and 3 chose to remain absent during the hearing of petition in spite of service on them through publication. While avoiding their attendance in proceedings in the petition, the respondents Nos.2 and 3 continued the illegal construction. In the words of S. Mehmood Ali, Controller of Buildings Circle-F, K.B.C.A., in his compliance report, dated 25-4-2001, it was constructed, "under the shelter of Gundagardi with the result that complaint was lodged to S.D.M. and S.H.O. concerned, to provide police force but the same was not provided". Vide order dated 20th May, 1999, the building was attached and the respondents Nos.2 and 3 were restrained from creating any 3rd party interest in the project and the copy of the order was sent to sub-Registrar of the property concerned as well as Karachi Water and Sewerage Board, K.E.S.C. and Sui Southern Gas Company, for information and necessary action. The petition was finally disposed of on 8-2-2000 and ultimately the demolition action was taken by K.B.C.A: The 6th and 7th floors of the building were, totally demolished and the remaining building was demolished and damaged to the extent that the Technical Standing Committee on dangerous buildings declared the same as dangerous and recommended that the total demolition be made by approved experienced demolition contractors and the standing structure be removed by technical experts so as to avoid untoward incident. On 25-4-2001 while submitting the compliance report, the Chief Controller of Buildings, had given undertaking to take further action so as to ensure that the reconstruction becomes almost impossible and the action taken serves as deterrent for others. However, the further story is diametrically opposite to the above undertaking.
42. As already observed the compliance report was submitted before this Court on 25-4-2001. Thereafter builders, their collaborators and other persons acting for and on their behalf, kept quiet for sometime. After a short lull period they again became active. It is stated by Muhammad Dawood son of Jan Muhammad in his counter-affidavit to C.M.A. 3162 of 2003 that, after demolition, the building had become unfit for habitation. In the meanwhile, the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002 was promulgated and in view of section 5 thereof, he submitted an application for regularization of the same building to the respondent No. 1, K.B.C.A. He has produced copy of application dated 14-1-2002 for the purpose of completion and regularization. Alongwith the application he submitted copy of a challan. dated 12-1-2002, whereby an amount of Rs.3,37,426 was deposited in the account of K.B.C.A. the purpose for which the amount was deposited is shown as regularization of Basement + ground + 7th floor and nothing has been produced to show as to who authorized the deposit of this amount and under which provision or authority the fresh proceedings were initiated for regularization of building which was admittedly constructed by flouting all the law, rules, and regulations pertaining to the land use and construction. In a highly clandestine manner the proceedings for perpetuation of blatant act of illegality committed in violation of relevant laws and the directions of this Court were initiated with the connivance of K.B.C.A. After the deposit of Rs.3,37,426 purportedly for completion of regularization of a building demolished under the order of this Court and in the wake of undertaking by K.B.C.A., that further action shall be taken to ensure that reconstruction becomes almost impossible and the action taken serves as deterrent for others, the proceedings were initiated with the following note:
"Above mentioned documents have been received for scrutiny by the concerned counter-clerk for compounding the offence/ offences relating to the business works in the light of provisions of Sindh Buildings Control Ordinance, 1979 as amended up to date and Karachi Building and Town Planning Regulation, 1979. The authority reserves the right to reject form 6 or 7 of Karachi Building and Town Planning Regulation, 1979 with cogent reason."
43. The respondent Muhammad Dawood has further produced copy of the building plan, which was submitted for regularization. He has further produced 4 other copies of challans through which various amounts were deposited from time to time with the K.B.C.A. He has produced a letter, dated 21-10-2002 written by Deputy Controller of Buildings, Zone XXVIII, to Mr. Dawood son of Jan Muhammad whereby permission was granted for remedial measures which were considered by the competent authority as per recommendations of the dangerous committee. The builder was directed to carry out remedial measures on the existing structure under the supervision of Structure, Engineers. No new construction was allowed. In this letter reference was made to the re-inspection of building by Standing Committee on dangerous Buildings and the orders of Chief C.O.B. dated 21-10-2002. However, this re-inspection report by Standing Committee on Dangerous Buildings and order of Chief Controller Buildings, dated 21-10-2002 have not been produced by the Chief Controller Buildings or any other officials of the K.B.C.A. After getting the permission for carrying .out remedial measures to resurrect the building which was declared as dangerous and not capable of repair, it was repaired and purportedly made capable for habitation. Minutes of Technical Committee on Dangerous Building regarding structure, stability of the building under consideration dated 8-4-2003 has been produced. Under the Chairmanship of Muhammad Yousuf Qureshi, the proceedings took place. This is the same committee which had earlier declared that after demolition action the remaining building had become so dangerous that further demolition required involvement of experienced demolition contractors. This very committee which had recommended on 26-10-2000 that for - the purpose of safety the remaining structure was declared dangerous to be demolished by approved K.B.C.A. Contractor, took a complete summersault. In the meeting dated 8-4-2003 the reason for earlier opinion were explained and it was stated that the building was declared dangerous due to effect of demolition which needed rectification. The Chief Controller Building had undertaken before this Court on 25-4-2001 that he will definitely take further action so as to ensure that the reconstruction almost becomes impossible. However, reconstruction and repair took place and the Technical Committee declared that the entire building was safe and fit for habitation. Equipped with the purported scrutiny made by K.B.C.A., re-inspection by the Standing Committee referred to in the letter of Deputy Controller, of Building, dated 21-10-2002, the order of Chief Controller Building, dated 21-10-2002 (not on record), the report of Technical Committee dated 8-4-2003, the K.B.C.A., vide its letter dated 21-4-2003 showing Plot No.43 Block-3 Maqboolabad Cooperative Housing Society, as the residential plot (never converted to flat site) regularized the construction of Basement + Ground + 7 upper floors. A perusal of this document speaks volumes in itself. We have earlier referred while considering the challan dated 12-1-2002 produced by the builder Dawood Jan Muhammad, that it is not known as to how this amount was deposited and under which authority. A perusal of so-called regularization of building shows that an undertaking was submitted by the builder before the K.B.C.A. on 12-1-2002. The said undertaking has not been produced before this Court and it is not known as to how this undertaking was permitted to be given and what was the nature of undertaking. The document dated 21-4-2003 contains in the very first sentence that the building plan was approved and the attorney of owner was permitted to carry out construction on the plot. On page 2, it is further stated that the building was not complete in all respects and that the attorney of owner was directed to complete structure in accordance with the approved regularization plan. It further states that the owner/attorney is bound to get completion/occupancy plan from K.B.C.A. before occupation.
44. At this stage we would like to make very pertinent observation which is relevant for the purpose of deciding the application under consideration as well as the applications for initiation of contempt proceedings. The documents produced by the builder and supported by the K.B.C.A. officials contains in themselves the material which make mala fide actions on the part of builder, K.B.C.A. officials, members of the Standing Committee and all other concerned very conspicuous and floating on the face of record. The case of the builder, K.B.C.A. and all other respondents is that the construction which was required to be erased in pursuance of the order of this Court and undertaking of K.B.C.A. and which was actually partly demolished and mere structure was left which was also to be demolished and erased under the supervision of experts was subsequently regularized in accordance with the provisions contained in Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002. However, the Persian adage person speaking lie has no good memory) is fully applicable here. At wisdom to the ages old saying that every wrong/crime leaves its traces, is fully demonstrated from the documents produced by the builder and supported by the. K.B.C.A. officials itself. The Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, was promulgated on 19-3-2002 and came into force with effect from 18-4-2002. The documents produced by the builder Dawood Jan Muhammad on the basis whereof the entire unauthorized building directed to be demolished by this Court and undertaken by the Chief Controller Buildings, to be demolished in such a manner that it may serve as a deterrent for the others was regularized on the basis of proceedings which were initiated on the basis of an undertaking by the builder furnished on 12-1-2002. On the same day a challan was issued in the sum of Rs.3,37,426 which were deposited and on 14-1-2002 an application for obtaining completion and regularization certificate was furnished. It is admitted position that on 12-1-2002 and 14-1-2002, the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, was not enacted. On these dates there was no law oh the statute book under which the building directed to be demolished by this Court on the basis of clear statement of K.B.C.A. that the entire building was constructed illegally and under the cover of "Gundagardi", and which order of this Court was upheld by the apex Court, may be reconsidered for regularization and for issuance of completion certificate. The fact that the application forming basis of the regularization was never submitted under the provisions of the Sindh Regulation and Control (Use of Plots and Construction of Buildings? Ordinance, 2002 and was submitted under the provisions of Sindh buildings Control Ordinance, 1979 is evident from the perusal of application and from the note on the application which has been reproduced above. The note on the application clearly states that the application and documents were received for compounding the offence in the light of provisions of Sindh Buildings Control Ordinance, 1979 and Karachi Building and Planning Regulations, 1979. The unholy alliance between the builders and K.B.C.A. is further evident from the documents produced by the builder alongwith his counter-affidavit to C.M.A. 861 of 2003. Vise have already discussed two documents first being Annexure "C-1" the application dated 14-1-2002 for "completion and regularization" and the challan Annexure "C/3" dated 12-1-2002. A perusal of the acknowledgment slip Annexure."C/1" dated 14-1-2002 (the application itself has not been produced by the builder or K.B.C.A.) shows that entire proceeding were initiated to undo the orders of this Court, affirmed by apex Court, by recourse to the provisions contained in the Sindh Buildings Control Ordinance, 1979 and not under the Sindh Regulation and Control (Use of Plots and Construction of Buildings), Ordinance, 2002, as alleged.
45. After narrating the above facts and showing that the builder and K.B.C.A. in collaboration with each other initiated proceedings for compounding the offence, regularization of unauthorized construction directed to be demolished and joined hands for issuance of a completion certificate in respect of the building awaiting complete demolition in compliance of the order of this Court much before the promulgation of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, we come to the plea taken on behalf of builders and K.B.C.A.
46. The main contention raised on behalf of builders and K.B.C.A. in opposing the prayer for demolition of building was that although at the time of disposal of this petition, the earlier construction was illegal and as such was directed to be demolished and the order passed by this Court was upheld by the Honourable Supreme Court as well, but with the promulgation of Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 200" the situation was entirely changed. A plea was taken on behalf of builder that the provisions contained to the above Ordinance had overriding effect and notwithstanding, anything contained in any law for the time being in force or judgment, or order or decree of any Court, any building constructed before the commencement of the said Ordinance in violation of the provisions of Sindh Buildings Control Ordinance, 1979 or Regulations made thereunder may be regularized by the authority under the Sindh Buildings Control Ordinance, 1979 on the conditions and payment of the fee as may be prescribed. According to builder, the building under consideration was repaired, remedial measures\ were taken and was regularized, therefore, the petitioners and all other Persons were debarred from making a prayer for the demolition of such regularized building and this Court has no jurisdiction to direct demolition. It is pertinent to note that the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002 was promulgated for a period of one year, and the said Ordinance expired on 17-4-2002, while, the building was regularized on 21-4-2003, to wit, after the expiry of the Ordinance. The point was being agitated if the K.B.C.A. could exercise the authority vested under section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, after its expiry. However, during the pendency of these proceedings another Division Bench of this Court delivered a judgment in C. P, No. 856 of 2002 on. 14-10-2003, (2004 CLC 1353) to the effect that the word "constructed" used in section 5 of the above Ordinance applies only to the plots completed in all respects on the date of commencement of the Ordinance.
47. The principle of law that; judgment delivered by one Division Bench of this Court has the binding effect on another Division Bench, requires no elucidation. With the pronouncement of Division Bench D judgment in C.P. D-856 of 2002 on 14-10-2003 the entire scenario again changed, in view of the admitted fact that at the time of commencement of the Ordinance, the building under consideration was not completed in all respect and the permission for remedial work was granted on 21-10-2002, much after the commencement of the Ordinance, which was promulgated on 19th March, 2002 and came into force on 18th April, 2002, in pursuance of notification issued under subsection (2) of section 1 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002. The regularization of the building under (consideration was riot legally valid, in accordance with the ratio of the above judgment. However, Mr. Munir Malik, learned counsel for the builder submitted that the association of builders and developers have preferred an appeal before the Honourable Supreme Court against the judgment dated 14-10-2003 passed by this Court in C.P. No.856 of 2002 and the demolition ordered by the above judgment has been stayed. Mr. Munir Malik, however, candidly conceded that notwithstanding, the suspension of the demolition directed in the judgment 14-10-2003, the said judgment still holds the field, until and unless set aside/reversed by the apex Court. The result is that the judgment has still binding force on every other Division Bench of this Court. Mr. Munir Malik, submitted that several points have been overlooked by the learned Division Bench of this Court in the judgment dated 14-10-2003 and he will try to persuade us for referring the issue to the Honourable Chief Justice for the constitution of full bench. Before considering the contention of Mr. Munir Malik, in respect of -his plea for making reference to the Honourable Chief Justice for the constitution of full bench, we would like to observe that Mr. Munir Malik has conceded to the factual position that the entire building was declared to be unauthorized and was directed to be demolished prior to the promulgation of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002. He has further conceded that this Ordinance was promulgated on 19-3-2002 and was enforced with effect from 18-4-2002 and it lapsed on 17-4-2002. He has also conceded that 2 upper floors of the building were fully demolished by K.B.C.A. in compliance with the order of this Court and the remaining floors were also demolished leaving the structure intact. Thus, the building was not fully constructed/completed before the commencement of the above Ordinance. The permission for remedial work was granted on 21-10-2002, the challan for payment of fee for regularization was deposited on 9-4-2003 and the repaired/resurrected building in accordance with the revised plan was approved on 21-4-2003 i.e. after Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002 stood lapsed.
48. Coming to the judgment delivered by another Division Bench of this Court in C.P. No.856 of 2002 Mr. Munir Malik, has contended that the learned Division Bench while considering the purpose of promulgation of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2.002, made certain observations, which arc inconclusive and several other aspects were neither brought to the notice of the learned Division Bench nor they were adverted to. It was observed that the Sindh Buildings Control Ordinance, 1979 was promulgated whereby it was provided that. the plots could be constructed after approval of its plan and the purpose was to prevent unregulated construction in Urban area which can create several environmental hazards and drain on amenities available. The authority under Sindh Buildings Control Ordinance, 1979 was empowered to frame regulations in this behalf, it contained provisions of demolition of buildings constructed without approval of the building plan. However, it was found even several years after the enforcement of 1979 Ordinance, that the many buildings were constructed in violation of the approved plan and several cases were brought to the notice of this Court and Honourable Supreme Court. In large number of cases demolitions were ordered. It was observed that in several cases pertaining to illegally constructed residential apartments, occupants attempted to stall demolition claiming that they were deceived through builders into investing their life savings in purchase of such apartments and they would be the sufferers on account of Court orders. Nevertheless, it was held by the Honourable Supreme Court in the case of Muhammad Salim v. Administration, Karachi- Metropolitan Corporation 2000 SCMR 1748 that a transferee from a builder acquired no better rights than his predecessor and such persons were barred from seeking any relief in this behalf. It was further observed by the learned Division Bench that, "it was against this background that the impugned Ordinance was promulgated which remained operative for a period of one year from its commencement". In the cited petition, the vires and legality of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002 was challenged. After very elaborate discussion it was held that the Ordinance was not violative of the Constitution and was a valid piece of legislation. However, during the course of discussion, it was observed in para. 20 of the cited judgment as follows:--
All that section 5 appears to have done is to extend such powers in enabling the respondent No.2 even to accord post facto approval to a building already constructed subject to certain conditions and limitations. (underlining is ours).
49. In para. 22 an observation was made as under:--
"While Mr. Zuberi effectively represented the view point of builders, unfortunately we did not hear anything from the learned Advocate-General from the standpoint of a large number of beneficiaries of the legislation i.e. the occupants of multi storeyed apartments nor any other counsel seeking to represent their cause requested for a hearing."
50. Another observation was made in following terms:--
"At the same time, however, we cannot help taking judicial notice of the fact that thousands of individuals falling in lower income brackets have invested their life-savings in the purchase of apartments in buildings raised in violation of the requirements of the 1979 Ordinance and the Regulations. Obviously if all such buildings are required to be demolished in accordance with law prevailing prior to the impugned Ordinance, they would be rendered absolutely homeless. Indeed such people could not claim any strict legal right as understood in private law on account of their foolishness or ignorance of law. The question however, is whether they are also required to be deprived of their fundamental right to bare existence. Would their being thrown on the streets and rendered shelterless contribute to the growth of a. healthy environment? After all to right to life is guaranteed even to a person found guilty of serious offence and the dignity of even a person sentenced for a heinous offence is also protected by the Constitution. In proceedings of this nature, we are of the view that Courts are required to strike a delicate balance between the various competing interests before pronouncing judgments. For these reasons we are constrained to repel the petitioners' challenge on grounds of Articles 9 and 14 of the Constitution."
51. In para. 29, arguments of Mr. Abid Zuberi, Advocate, appearing for Builder was recorded as under:--
"Mr. Abid Zuberi argued that there was nothing in section 5 to suggest that absolute unguided power had been conferred upon the respondent No.2 to regularize each and every building at all times. In the first place it only applies to those buildings which had been completed before the commencing date. Secondly it was only to last- for a period of one year from the commencing date. "
52. Again in para. 30, the learned Division Bench made the following observation;--
"In substance it appears that through the impugned 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 Building Control Ordinance and Regulations continued to remain operative."
53. Another observation was made in para. 31 as under:--
"In the circumstances, we are of the view that once it is evident that the measure in question was taken to protect residents of such buildings, the Constitutional requirement is met."
54. Another observation was made in para. 32, with reference to the judgment of Honourable Supreme Court, in the case of Muhammad Salim v. Administrator K.M.C. 2000 SCMR 1748, "This in our view, however, does not restrict the power of the Legislature to make all dispensation for the benefit of such persons".
55. Learned Division Bench, held in para. 33 of the cited judgment as follows:--
"In the circumstances, we are inclined to hold that the object of the Ordinance being to protect a definite class of 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."
56. Honourable Division Bench, while recording its conclusion inter alia held as follows:--
(iv) The impugned Ordinance is accordingly a valid piece of legislation subject to the clarification that apart from the categories spelt out in the proviso to section 5, the word "constructed" used in the main section applies only to buildings completed in all respects on the date of commencement of impugned Ordinance.
(v) Any regularization accorded in violation of the law, including the provisions of the impugned Ordinance can always be questioned in appeal under the Sindh Buildings Control Ordinance or before this Court by way of judicial review."
57. Referring to the above observations, made by these learned Division Bench, before coming to the conclusion that the regularization envisaged under the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, is restricted to the buildings constructed before the commencement of the said Ordinance and issuing clarification that it was confined to those buildings, which were fully completed on the commencement of the Ordinance and would not apply to any incomplete building or one in the process of construction. Mr. Munir Malik has vehemently argued that the learned Division Bench has taken a very restricted view relating to the purpose and intention of the enactment of the Sindh Regulation and Control (Use of Plots and Construction. of Buildings) Ordinance, 2002. He has submitted that according to the learned Division Bench, the purpose of promulgation was to protect the interest of occupants of illegally constructed buildings only.
58. The learned counsel has maintained that the learned Division Bench while deciding the C.P. No.856 of 2002 has considered a single purpose only for the promulgation of Ordinance. According-to him when a building is constructed, the interest of several parties is involved and a law in the nature of amnesty, protects the interest of all, the parties concerned and not of one party only. One of the purposes is to protect the building itself in which third party interest has been created prior to the commencement of Ordinance. The other purpose is to protect interest of builder/investor and to safeguard the huge investments made in the construction of building. Thus, while interpreting the provisions contained in section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002 a broader view and vision is required and a restricted and narrow view is not in consonance' with the purpose of law. He has submitted that although on the day of commencement of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, the building under consideration was not completed in all respects but a portion thereof was already,. constructed and even after the demolition exercise undertaken by K.B.G.A.', the structure Was standing on Basement + 5 Floors, 6th and the floors were totally demolished while the remaining portion of tile building was demolished to the extent that it was made inhabitable. Nevertheless, the -portion of building was in existence, which though constructed in violation of the Sindh Buildings Control Ordinance, 1979 and the Regulations and held as such by this Court, was capable of being regularized by the K.B.C.A. In support of his contention that a portion of the building existing for demolition was, itself a building, he has referred to the provisions contained in section 6(5) and explanation of Sindh Buildings Control Ordinance, 1979, which reads as follows:--
"(5) At any time after a no-objection certificate has been issued under subsection . (1) but before the completion of building, Government may, if it is satisfied that the construction of any type of building or buildings in any area is not in the public interest or is otherwise inexpedient notwithstanding anything contained in this Ordinance, rules or regulations made thereunder and without notice suspend or cancel the certificate.
Explanation.--- The expression "completion of building" used in this subsection means the completion of, building in all respects according to the approved plan and in respect whereof occupancy certificate has been issued. "
59. He has emphasized that in this provision the expression "completion of building" has been used and the expression has been explained to mean the completion of building in all respect according to the approved plan and in respect whereof occupancy certificate has been issued. In contradistinction to this expression the definition of building in section 3(d) ,of the Sindh , Buildings Control Ordinance, 1979, it is provided as under:--
"(d) "Building" means a building or part thereof and includes all fittings, fixtures, installations, signs and display structures of the building, but does not include any building notified by the authority. "
60. Mr. Munir Malik, has submitted that according to this definition the` entire building or part there of is included in the term building. Referring to section 5 of the Sindh Regulation and Control (Use of Plots, and Construction of Buildings) Ordinance, 2002, he has contended that the expression used is "any building constructed before the commencement of this Ordinance". For the sake of convenience section 5 is reproduced below:--
"5. Regularization .--- Notwithstanding anything contained in any law for the time being in force or judgment, order or decree of any Court, any building constructed before the commencement of this Ordinance in violation of the provisions of the Ordinance or Regulations made thereunder, may be regularized by the Authority appointed under the Ordinance on the conditions and -on payment of the fees as may be prescribed."
61. The term "building" for the purpose of Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, has been defined in section 2(b) as follows:--
"(b) "Building" means a building or portion thereof constructed on a plot."
62. While defining the term "building" in the Sindh Buildings Control Ordinance, 1979, the Legislature has used the word "building or part thereof", and in section 2(b) of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, the words used are "building or portion thereof constructed on a plot".
63. Mr. Munir Malik has submitted that there is difference in the expression "part" and "portion". According to him the word "part" means any construction which is included in a particular project such as out houses or garages. On the other hand, the word "portion" signifies a construction which is inseparable from the main building and is included in a composite building. On the basis of this premises he argued that the structure which remained intact after the demolition of building was remaining portion of the composite building and was covered by the term "building" used in section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance; 2002, and was capable of being regularized. He emphasized that these aspects were not considered by the learned Division Bench of this Court in the earlier petition before giving the finding that the words "building constructed before the commencement of this Ordinance". Occurring in section must only be confined to those buildings which are fully completed of the date of commencement of the Ordinance and would not apply to incomplete building or one in the process of construction.
64. Dealing with the fact that admittedly the revised plan in this case was approved on 21-4-2003 while the Ordinance lapsed on 17-4-2002, the learned counsel argued that when a vested interest is created, the illegally constructed building could be regularized even after expiry of the Ordinance. The learned counsel was requested to further explain and elaborate his contention. He was asked to explain as to what would be the legal position, qua, the regularization envisaged under the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, if a project comprising 20 storeys was announced in the year 2001. The building plan and project announced was in total violation of the building laws and the building plan was never approved by the competent agency. All apartments in the building were booked and third party interest was created. One floor only `was constructed on the commencement of Ordinance i.e. 18-4-2002. Whether the builder could be allowed to allege that he may be accorded the approval for the building plan which was totally illegal and then in pursuance of such approval he may be allowed to construct the entire building within an unlimited period and on completion of the building the illegalities and flagrant violations of the law can be condoned and the entire illegal construction be approved, notwithstanding, the completion of construction after the expiry of Ordinance, irrespective of the fact that the building is completed in the year 2004 or 2005. Mr. Munir Malik was not able to give any satisfactory reply to the above query.
65. Lastly, Mr. Munir Malik submitted that the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, is in the nature of amnesty scheme and therefore, all the illegalities, irregularities, and violations of law except specifically excluded in the Ordinance itself could be regularized on the payment of prescribed fee. In this case the revised building plan was approved, prescribed fee was paid the building was constructed in accordance with the revised approved plan and therefore, no exception can be taken to the regularization of the building.
66. Adverting to the applications for contempt of Court, Mr. Munir Malik, submitted that in the first instance, no violation of the order made by this Court and undertaking furnished before it was committed. The K.B.C.A. was directed to demolish the entire building which was constructed illegally and the K.B.C.A. complied with the directions 6th and 7th floors were totally demolished and the remaining portion of the building was demolished to the extent that mere structure was left and the building was made inhabitable. Secondly, a building has been resurrected and reconstructed in pursuance of the regularization accorded by K.B.C.A. under section 5 of the Sindh Regulation and Control (Use owl Plots and Construction of Buildings) Ordinance, 2002, which could be accorded notwithstanding, anything contained in any law for the time being in force or judgment, order or decree of any Court. Thirdly, even if there is any violation (though not conceded) it was not intentional but was result of wrong understanding of law. All acts taken by the alleged contemners were bona fide and without any mens rea. The bona fide acts do not constitute the contempt of Court. He has submitted that in these circumstances, no proceedings may be initiated for contempt of Court and the application in this behalf may be dismissed.
67. All the other Advocates appearing for the respondents/alleged contemners have adopted the arguments addressed by Mr. Munir Malik.
68. We have given our anxious consideration to the material available on record and the contentions raised by the learned Advocates for the parties.
69. We are of the considered opinion that the entire proceedings initiated by the builder was in flagrant violation of the orders passed by this Court and the process initiated by the builder with the active collaboration of the K.B.C.A. officials was mala fide on the face of it. The entire facts have been narrated in this behalf and we need not to repeat the same. We have shown that the builders and their collaborators in K.B.C.A. initiated fresh process, seeking regularization of the building plan in respect of a building directed to be totally demolished The process was initiated on 12-1-5002 with furnishing of an undertaking before the K.B.C.A. by the builder and on the same day a challan was issued. The amount of Rs.3,37,426 was deposited and an application, dated 14-1-2002 was submitted for the purpose of completion and regularization certificate. It is pertinent to note-that the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, was promulgated on March, 19th 2002 and commenced with effect from April, 18th 2002. These proceedings were therefore, not initiated under the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, as alleged by the builder, K.B.C.A. officials and argued by Mr. Munir Malik learned counsel for the builder. This fact is floating on the face of record and is evident from the documents produced by the builder himself. The final approval contained in the document dated 21-4-2003 has also been discussed while narrating the facts. We have found, that through this document a building constructed illegally and demolished before the commencement of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, has not been regularized as envisaged under section 5 thereof, but through this document the building plan which was initially not approved being in violation of the law was approved for the reasons best known to the Chief Controller Buildings and other concerned officials of K.B.C.A. and the attorney of the owner of building was permitted to carry out construction on the plot. The fact that through this document an illegally constructed building has not been regularized within the frame work of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, but permission for constructing an illegal building in viola to n of law has been accorded by Chief Controller, K.B.C.A., is evident on the contents of document itself, wherein it is stated that the binding was not complete in all respects and the attorney of owner was directed to complete structure in accordance with the approved regularization plan and, that the owner/ attorney was bound to get completion plan from K.B.C.A. At this stage, we would like to highlight the approval given by K.B.C.A. vide document dated 21-4-2003 which speaks of "approved regularization plan". This is totally beyond the scope of section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002. This provision of law speaks of the regularization of building constructed before the commencement of the Ordinance in violation of the provisions of Sindh Buildings Control Ordinance, 1979., section 5, no where empowers the K.B.C.A. or any authority to approve the regularization plan ,but it merely empowers the authority appointed under the Sindh Buildings Control Ordinance, 1979, to regularize the building already constructed. The term, "building" and the "building plan" are not synonymous to each other and cannot be equated to each other. The 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. The later Ordinance, does not envisage any process pertaining to the building plan, the approval thereof and the consequences of violation of the building plan. These provisions are contained in sections 6, 7 and 7-A of the Sindh Buildings Control Ordinance, 1979. It also does not deal with the compounding of offence committed by contravening the law pertaining to building plan and this subject is also dealt with under the provisions contained in the Sindh Buildings Control Ordinance, 1979.
70. The above narration of facts leads no scintilla of doubt in our mind that in fact no regularization order envisaged under section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, has been passed by the K.B.C.A. and in fact the process was initiated in defiance of the orders of this Court for regularization of the building plan under the Sindh Buildings Control Ordinance, 1979 and for obtaining completion plan under the same Ordinance and the approval was also accorded to the building plan under the same Ordinance and no order for regularizing the building already constructed as envisaged under section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, was issued. The plea-taken on behalf of builders and K.B.C.A. officials that the proceedings were initiated under the later Ordinance is merely a smoke screen. The approval of building plan was granted on 21-4-2003, when the Sindh Buildings Control Ordinance, 1979 was of course on the statute book but the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, was a dead law having been. lapsed on 17-4-2003. With this finding we can given a direction out rightly for demolition of the entire building in terms of the undertaking given by K. B. C. A. in this, Court. However, we would like to examine the other contentions raised by Mr. Munir Malik as the issues involved are of general public importance.
71. We have already observed that section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, does not envisage the approval, of any building plan as has been done in this case which is totally beyond the framework and scheme of the law contained in the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002. We will further consider this aspect when we come to consider the contention of Mr. Munir Malik, that the provisions contained in Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002 are in the nature of amnesty scheme.
72. Prior to that we will consider the arguments advanced by Mr. Munir Malik, in his attempt to persuade us to agree with his contention that the ratio of the judgment in C.P. No-856 of 2002 requires further consideration and therefore, a reference be made to the Honourable Chief Justice for constitution of larger Bench.
73. We agree with the view canvassed by Mr. Munir Malik, that there can be more than one reasons/purposes for the promulgation of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002. However, this view is not in conflict with the view taken by the learned Judges in C.P. No.856 of 2002. The learned Judges in the above judgment have not observed that the protection of residents of.. the building and investments made, by them was the sole purpose for promulgation of the amnesty law. While considering the vires and Constitutional requirements for the promulgation of iaw, it was observed that, judicial hotice was taken of the fact that thousands of individuals falling in lower income have invested their life savings in the purchase of apartments in buildings raised in violation of requirement of the 1979 Ordinance and the regulations. The observation made does not mean that the sole purpose of law was to protect the occupants from being rendered shelterless and protect their investments. It was one of the dominant consideration for the promulgation of amnesty law. The protection to the investment made by. the builders in the construction of buildings, alongwith the protection to the investments made by the occupants in some cases are so intimately connected and interwoven that that cannot be separated from each other. Thus, in spite of agreeing with the contention of Mr. Munir Malik, that one of the purposes for the promulgation of amnesty law was to protect the investments made by the builders also, we are not persuaded to disagree with the ratio of the judgment. The ratio of the D.B. judgment in C.P. No.856 of 2002 is contained in the following passage:--
(1) All that section 5 appears to have done is to extend such powers enabling the respondent No.2 (K.B.C.A.) even to accord post facto approval to a building already constructed subject to certain conditions and limitations.
(2) In substance it appears that through the impugned 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 Buildings Control Ordinance and Regulations continued to remain operative.
(3) In the circumstances we are inc fined to hold that the object of the Ordinance being to protect a definite class of 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.
74. We are of the view that the object of promulgating amnesty law referred to in the Division Bench judgment above, is not conclusive. 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. We would further like to clarify that in C.P. No.856 of 2002, the main issue pertained to the vires of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002. In such cases, if there are more than one objects for the promulgation of a law and if on consideration of one object/purpose/aspect, it is found sufficient to meet the Constitutional requirement; the Court can decline to strike down the law as un-Constitutional and can hold the law as valid piece of legislation. It is not necessary to visualize and compile all the possible objects and purposes of enacting the law and the addition of such objects/purposes/reasons for the promulgation of law shall not affect the consequences flowing from the language of law shall not make the law more or less valid. Thus, the additions to the objects/purposes for promulgation of the amnesty law has no significance or bearing on the validity of law. It would be appropriate, to observe that while considering the purport, purview and scope of section 5, the language used in the section is the sole determining factor. While applying the provision of section 5, the authority competent in law is not supposed to make an inquiry as to whose investment and interest was sought to be protected. No such instance has been brought to our notice. While considering the validity, vires and constitutionality, such considerations are to be dilated upon, but while considering regularization or scope thereof, such considerations are not required to be dwelt upon.
75. The moot point for consideration is always the ascertaining of connotation, purport and scope of a provision of law contained in a particular section, when read with other provisions in the scheme of law and emerging from the totality of such scheme. We will examine this aspect in some detail while dealing with the contention of Mr. Munir Malik, that the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, is a law of amnesty in nature.
76. Now we proceed to examine the contention of Mr. Munir Malik, that in section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, the expression used is a building and in section 2(b) thereof the building has been defined to mean a building or portion thereof constructed on a plot He has referred to section 6(5) of the Sindh Buildings Control Ordinance, 1979 and the definition of building in section 3(d) thereof. We are of the opinion that 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 no where 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 t 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, we find 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 stoley 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 Buildings Control Ordinance and Regulations inoperative which continued to hold the field and remain operative, so far, a building or portion thereof was not constructed but was in the process of being constructed and was incomplete.
77. Applying the above criteria, we find that in this 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 of Mr. Munir Malik, that the regularization was not restricted to an entire building/project but it extended to a portion of building as well, we are not persuaded to agree that a building or portion thereof in a dangerous consideration, being hazardous to life could 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 Sihdh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, and disregarding the very concept of amnesty scheme. As already observed 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.
78. Now we will proceed to examine the last contention of Mr. Munir Malik, to the effect that the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, is in the nature of amnesty scheme and therefore, all the illegalities, irregularities and violations of law except specifically excluded in the Ordinance itself could be regularized on the payment of prescribed fee so as to include the approval of a revised building plan and the permission to raise the construction in complete violation of the provisions contained in Sindh Buildings Control Ordinance, 1979 and the Regulations.
79. Few aspects of this contention have been examined and discussed by us in earlier part of this judgment. We have already held that the 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 K 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 in fact the approval accorded to the building plan in this 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 this petition the K.B.C.A. 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.
80. This brings us to the provisions contained in section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002. The validity, purport, purpose and scope of this provision has already been examined at sufficient length, by our learned brothers in C.P. No.856 of 2002 (2004 CLC 1353). It has been concluded that 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. We fully subscribe to the view that the provisions contained in section 5 are not extended to incomplete buildings (or portion thereof) or in the process of construction.
81. We would like to add few words of our own in support of the conclusion and the finding arrived at by our learned brothers in C.P. No.856 of 2002 (2004 CLC 1353). The golden rule of interpretation of statutes is that the Court should read the plain language of law and interpret the same in accordance with the consequences flowing from the plain language of law. A bare reading of section 5 shows that it empowers the authority appointed under the Ordinance regularize, any building constructed before the commencement of this Ordinance in violation of the provisions of the Ordinance or regulations made thereunder. (Emphasis provided by us). At this state, we would like to refer another principle of interpretation of statutes that the Legislature shall always be deemed to have full knowledge of the import and meanings of the words used in an enactment. In this case we are considering the issue of O regularization of a building in the context, whether it is confined to the regularization of the buildings already constructed, before the commencement of Ordinance, by giving post-facto validation to the illegalities/ irregularities already committed, on conditions and payment of fee as may be prescribed or it envisages the perms ion for commission of illegalities and violations of the building law contained in Sindh Buildings Control Ordinance, 1979, Regulations and Rules thereunder, in spite of the fact that the matters pertaining to the approval of building plan, compounding of offences and completion certificate are governed under the Sindh Buildings Control Ordinance, 1979 and Regulations and all such laws throughout remained operative and were in force. When we read section 5, we found that the word "constructed" has been used 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 we compare 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, we find 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 we find that it relates to the intended construction which is to take place to future. The use of the expressions immediately after the word "construction", "before the commencement of this Ordinance in violation p of the provisions of the Ordinance or regulations made thereunder" further strengthens the view 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.
82. At this stage a question arises as to what is the scope of the pardons and amnesty schemes. An amnesty scheme in the realm of law is riot a new phenomena. It is in vogue from the time immemorial. We will presently examine the nature and purport of the amnesty schemes. We have asked Mr. Munir Malik, to show us any amnesty scheme, in any sphere of law whereby the Legislature has empowered any authority or functionary to allow the commission of illegalities in future and to empower, them to regularize such illegalities committed under permission. Mr. Munir Malik, was not able to furnish any such amnesty scheme before us. The concept of pardon and amnesty is very well known in the realm of criminal administration of justice and tax laws. Under sections 401, 402, and 402-A of the Code of Criminal Procedure 1898, the Provincial Government, the Central Government and the President are empowered to suspend, remit or commute sentences R awarded to a convict person by the Court. Likewise under Article 45 of the Constitution of Islamic Republic of Pakistan, the President has the power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence by any Court, Tribunal or other authority. We will presently show the distinction between pardon and amnesty. For the time being our purpose in making reference to the above provisions of law is that the power to pardon, remission or commutation is conferred on the authorities in respect of offences proved to have been committed and after awarding of conviction and sentence. There is no law which empowers any authority to grant permission to violate the law and commit offences with assurance to condone, remit, pardon, ignore or of oblivion.
83. Mr. Munjr Malik, has argued that the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, is in the nature of amnesty scheme therefore, in pursuance of said scheme the K.B.C.A., could approve the building plan which is in violation of the Sindh Buildings Control Ordinance, 1979 and the Rules and Regulations framed thereunder and after completion of building in pursuance of such approval could regularize such illegal construction even after expiry of the Ordinance. He has addressed this argument in his attempt to persuade this Bench on the point that the decision of another Bench of this Court C.P. No.856 of 2002, to the effect that the regularization under section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, is confined to the buildings completed in all respects before the commencement of Ordinance is not correct, requires reconsideration and therefore, the matter be referred to the Honourable Chief Justice for constituting larger Bench to reconsider the issue. It is imperative that in order to appreciate the contention the nature of amnesty, schemes be examined. According to Wharton's Law Lexicon (1957 Edition), the amnesty is defined as follows:--
"Amnesty-non-remembrance, an act of pardon or `oblivion' (see e.g. the Act of oblivion 12 Car. 2., c, 11, an 20 Geo. 2, c. 52), by which crimes against the Government up to a certain date are so obliterated that they can never be brought into charge. All acts of amnesty originate with the Crown."
84. In the Roget's Theasaurs, the amnesty has been dealt with in the Chapter pertaining to the past and has been equated with oblivion to the past, pardon, acquittal, forgiveness, condonation, remission, indemnity, let bygones be bygones, etc.
85. In the Shorter Oxford English Dictionary, (1992 Edn.) the amnesty is defined as under:--
"Amnesty 1. Forgetfulness; an intentional overlooking 1952,
2. As act of oblivion, a general overlooking or pardon of past offences, by the ruling authority 1580.
1. Reconcilement. By an and passing over that which is past BACON 2. An act of, an indulgence BURKE."
86. In the Legal Thesaurus, by William C. Burton (1992 Edn.), amnesty is defined to mean:--
"Absolution, acquittance, act of grace, act of mercy, conciliation, condonation, discharge, discuplation; exculpation, exoneration, forgiveness, general pardon, grace, ignoscere, pardon, quittance, release, reprieve, universal forgiveness of past offences."
87. In Black's Law Dictionary, (1990 Edition), the amnesty has been defined in the following terms:--
"A sovereign act of forgiveness for past acts, granted by a Government to all persons (or to certain classes of persons) who have been guilty of crime or delict, generally political offences,--- treason, sedition, rebellion, draft evasion,--- and often conditioned upon their return to obedience and duty within a prescribed time. The 1986 Immigration Reform and Control Act provided amnesty for many undocumented aliens already present in the country.
Included in the concept of pardon is "amnesty", which is similar in all respects to a full pardon, insofar as when it is granted both the crime and punishment are abrogated; however, unlike pardons, an amnesty usually refers to a class of individuals irrespective of individual situations. State v. Morris, 55 Ohio st. 2d, 101, 90.0 3d 92, 378 N.E. 2d 708, 711:
A declaration of the person or persons who have newly acquired or recovered the sovereign power in a nation, by which they pardon all persons who composed, supported, or obeyed the Government which has been overthrown.
Amnesty is the oblivion and forgetfulness of the offence; pardon is forgiveness. Knote v. U.S. 95 U.S. 149, 152, 24 L.Ed. 442. The first is usually addressed to crimes against the sovereignty of the nation, to political offences; the second condones infractions of the peace of the nation. Burdick v. United State 236 U.S. 79, 35 S.Ct. 267, 271, 59 L.Ed.476."
88. In the above definition a distinction has been drawn in the pardon and amnesty. The pardon is forgiveness while the amnesty is only forgetfulness of the offence. The difference is too obvious and we need not to elaborate the distinction between the pardon and amnesty. The same distinction is highlighted in the Stroud's Judicial Dictionary, according to which pardon is the remitting or forgiving of a crime or, guilt while an amnesty is oblivion. It is pertinent to note that in all the definitions and meanings reproduced above, one thing is common that the amnesty or pardon relates to past acts only and has nothing to do with the acts to be done or intended to be done in future.
89. While considering the pardon power of the President of U.S.A. it, is stated by Rottacheafer, in the Handbook of American Constitution' (1939 Edn.) as follows:--
"The pardon power includes not only that of granting absolute and unconditional pardons, but also that of commuting a punishment to one of a different sort than that originally imposed upon a person. It may be exercised at any time after the commission of an offence either before legal proceedings are begun or during their pendency and either or after conviction" (Emphasis provided by us).
90. The subject of pardon was considered by Marshall, C.J. of the United States, in the case of United States v. Wilson (1963) 8 Law Ed. 640 (b). the learned Chief Justice laid down that the power to grant pardon is in essence an. executive function. He held that a [pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempt the individual on whom it is bestowed from the punishment the law inflicts for a crime which has been committed. Lord Coke, while adverting to the judgment of Marshall, C.J. in the case reported in 3 Co. Inst. 233, held that pardon is a work of mercy whereby the King either before attainder, sentence or conviction or after, forgiveth any crime, offence, punishment, execution, right, title, debt or duty, temporal or ecclesiastical.
91. In Halsbury's Laws of England, by lord Hailsham, 2nd Edit, At page 477, paragraph 579, it is stated that "pardon may in general be granted either before or after conviction". It is stated in paragraph 583, page 479, that, "the effect of a pardeon under the Great Seal is to clear the person from all infamy and from all consequences of the offences for which it is granted and from all statutory or other disqualifications following upon conviction. It makes him, as it were, a new man, so as to enable him to maintain an action against any person afterwards defaming him in respect of the offence for which he was convicted".
92. All the above authorities are unanimous on the point that general amnesty or individual pardon is always in respect of an illegality/offence already committed. After a very careful consideration, we are of the firm view that no amnesty scheme envisages any permission for commission of violation of law, or offence. It is restricted to the pardon, condonation; and oblivion of the illegalities and offences already committed. Frequent amnesty schemes are announced in the field of tax laws, wherein concessions are accorded to get a tax defaulter purged himself of the default and consequences on the prescribed terms and conditions for the tax evasion up to a particular cutoff date. No amnesty scheme contains any provision granting permission for evasion of tax, laws or condonation/compounding of tax evasion in future. In fact it is an impossibility because any such attempt would be destructive of entire system of law.
93. For the foregoing reasons, it is held that Mr. Munir Malik has rightly argued that the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, is in the nature of amnesty scheme. However, we regret our inability to concur with his view that the amnesty scheme empowered K.B.C.A. to accord approval to the building plan which was admittedly illegal and was held to be so by this Court. The K.B.C.A. further exceeded its jurisdiction in granting permission to repair and resurrect a building which was demolished to a great extent; and was awaiting its erasure under the expert supervision. The proceedings initiated in this behalf at the instance of Dawood Jan Muhammad, the builder with the collaboration of the officials in K.B.C.A. prior to the promulgation/commencement of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002 and subsequent approval of the illegal building plan by Chief Controller Buildings was absolutely illegal. It was also flagrant violation of the directions given by this Court for the total demolition of the building and undertaking given by K.B.C.A. before this Court.
94. We will summarize our finding as follows:--
(i) The proceedings initiated by, the builder in active collaboration with K.B.C.A. officials 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.
(ii) The subsequent proceedings including the proceedings of Dangerous Building Committee were undertaken under the Sindh Buildings Control Ordinance, 1979 and not tinder the Sindh Regulation and Control (Use of Plots and Construction or, Buildings) Ordinance, 2002.
(iii) 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 V Plots and Construction of Buildings) Ordinance, 2002.
(iv) All the approvals, completion certificate, so-called regularization and the recommendations of Technical Committee for Dangerous Buildings, were violative of the orders passed by this Court directing the demolition of building constructed illegally and in the words of K.B.C.A. under "Ghundagardi".
(v) We fully agree and subscribe to the views and findings contained in Division Bench judgment of this Court in C. P.No. 856 of 2002, = (2004 CLC 1353), whereby it has been held that 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.
(vi) 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 o 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.
(vii) The K.B.C.A. 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 this petition and have violated the direction of this Court, and undertaking to demolish the entire building.
95. After arriving at the above conclusion, we allow C.M.As. Nos.3162 of 2003 and 46 of 2004 and direct the Chief Controller Buildings and all other concerned officials under him to immediately' demolish/erase the entire building forthwith and report compliance to this 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 Buildings 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 are 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 KAC.A. 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.
96. A prima facie case of the commission of contempt of Court, has been made out and therefore, C.M.As. Nos.861 of 2003 and 45 of 2004 be placed in another file and notices be issued to:-- .
(1) Muhammad Dawood son of Jan Muhammad,
(2) Abdul Karim Khan son of Jamiat Khan,
(3) S.A. Nasir, Chief Controller of Buildings,
(4) Manzoor Qadir, Controller of Buildings Zone XXVIII, Circle-F,
(5) Ghulam Haider Shah, Sub-Registrar T-Division (XI),
(6) Syed Mehmood Ali, Controller of Buildings,
(7) Mumtaz Haider, C.O.B./Secy,
(80 Iftikhar Kaimkhani; D.O. M.P.G.O. CDGK,
(9) Siddique Essa structure Engineer,
(10) Yousuf Kureshi,
(11) Tasawar Abidi,
(12) Imran A. Farooqui,
(13) Arif Kasam,
(14) Khalil Ahmed,
(15) Mr. Faheem, D.C.B.
Date to be fixed by the office. All the above contemners be intimated that the proceedings for contempt of Court shall be initiated against them, with the framing of charge against them under the Contempt of Court Ordinance, 2003.
97. The learned Advocate-General, is appointed as Prosecutor for the purpose of contempt proceedings. The learned Advocate-General be intimated and put to notice that on the next date, charge shall be framed against the above persons. All necessary documents available with this Court shall be furnished to the learned Advocate-General. He may further call for the entire record from K.B.C.A. for the purpose of assisting the Court in framing the charge and the relevant documents so called be produced through concerned persons in the contempt proceedings.
98. The office is further directed, to obtain necessary directions from the Honourable Chief Justice, in respect of the bench before whom the contempt proceedings shall be placed.
M.B.A./M-91/K Order accordingly.