ZESHAN BUILDERS Versus KARACHI BUILDING CONTROL AUTHORITY

1. MUHAMMAD HUSSAIN ADIL KHATRI, J.‑‑‑ The petitioners have been allotted Plot No.FL‑26, Block 13, Gulistan‑e‑Jauhar, Scheme No.36, Karachi, in exchange, by respondent No.3, the Karachi Development Authority. The scheme is owned by respondent No.3 but a part thereof falls within the territorial limits of respondent No.2, the Drigh Road Cantonment Board (hereinafter to be referred to as Cantonment Board), constituted under the Cantonments Act (11 of 1924) (hereinafter to be referred to as the Act). The petitioners, therefore, submitted to respondent No.2 for approval building plan for raising construction on the aforesaid plot and the same was approved by the said respondent under its letter, dated 17‑7‑1989. The petitioners acting on the basis of the aforesaid approval announced their project known as Zeeshan. Super Luxury Apartments. Respondent No.1 Karachi Building Control Authority (hereinafter referred to as the Authority) constituted under the Sindh Building Control Ordinance (V of 1979) (hereinafter to be referred to as the Ordinance), issued a show‑cause notice dated 19‑10‑1989 to the petitioners, calling upon them to explain as to why action under the provisions of the Ordinance should not be taken against them for having advertised the project without obtaining N.O.C. from the said Authority. The petitioners apprised respondent No.1 that their project was within the limits of the Cantonment Board and that the Authority had no jurisdiction in the matter.' However, the Authority did not accept the contention of the petitioners and called upon them by its letter dated 16‑11‑1989 to stop all the construction activities at the site till the approval of the building plans by the said Authority under the provisions of the Sindh Building Control Ordinance, 1979.

2. The present petition has been filed challenging the aforesaid letters issued by the said Authority. Apart from the respondents Nos.1 and 2, the petitioners have joined Karachi Development Authority, Government of Sindh and Islamic Republic of Pakistan as respondents Nos.3, 4 and 5 respectively.

3. We have heard the learned counsel Mr. Muhammad Anwar Tariq for the petitioners, Mr. Mubarak Hussain Siddiqui for respondent No.1, Mr. Sohail Rana for respondent No.2, Mr. Dasti Muhammad Ibrahim for' Respondent No.3, Mr. K.M. Nadeem, learned A.A.‑G: for respondent No.4, and Mr. Naimur Rehman the learned Standing Counsel for respondent No.5.

4. Learned counsel for the petitioners, relying on Article 143 of the Constitution of the Islamic Republic of Pakistan, 1973, contended that there being conflict with respect to .the subject‑matter in question between the provisions of Cantonments Act, 1924 and the Sindh Building Control Ordinance, 1979, the provisions of the former law being the existing law shall prevail, even if it be accepted that the provisions of the aforesaid Ordinance extend to the areas included in the Cantonment. It was, therefore, urged that the respondent No.1 has no jurisdiction or authority to ‑approve the building plan of the building in question as it is situated within the territorial jurisdiction of respondent No.2 and that the respondent No.2 alone is the competent authority in this regard.

5. For the appreciation of the contention raised, it is necessary to refer to the relevant provisions of the aforesaid two statutes.

6. Respondent No.2, the Drigh Road Cantonment Board, has been constituted under subsections (1) and (2) of section 3 of the Act and respondent No.3 has been notified as Authority under section 4 of the Ordinance, which has created a separate department for discharging functions under the Ordinance. The said department is known under the nomenclature of Karachi Building Control Authority.

7. Chapter XI of the said Act relates to control over the buildings situated within the limits of the Cantonments. Section 178‑A provides that no person shall erect or re‑erect a building on any land in a Cantonment, except with the previous sanction of the Board, or otherwise in accordance with the provisions of the said Chapter and of the rules and bye‑laws made under the Act‑ relating to the erection or re‑erection of buildings. Section 179 provides that whoever intends to erector re‑erect any building shall apply for sanction to the Board, shall also specify the purpose for which the building is intended to be used. The remaining sections of the Act deal with other aspects ;of the said subject. ,

8. Similarly section 6 of the Ordinance provides that no building shall be constructed before the Authority has, in the prescribed manner, approved the plan for such building and granted no objection certificate for the construction thereof on payment of such fees as may be‑prescribed‑and section 19 prescribes penalty for contravention of any provisions of the Ordinance. ‑

9. Subsection (2) of section 1 of the Ordinance provides that it shall come into force from such date and in such area as the Government may by Notification specify and subsection (3) provides that the Government may by Notification‑exclude any area from the operation of all or any of the provisions of the said Ordinance. Section 2 of the Ordinance provides that nothing contained in any other law for the time being in force shall apply to any matter regulated by the said Ordinance.

10. It is not disputed that the Karachi Building Control Authority has' been constituted as Authority under the said Ordinance for the entire Karachi Division (recently Karachi Metropolitan Corporation has been notified as ` Authority in respect of some parts of Karachi Division) and that there is no Notification excluding the Cantonment areas from the operation of any of the provisions of the Ordinance. It is therefore, being contended that the provisions of the said Ordinance become applicable to the Cantonment area in Karachi and as such no building can be erected or re‑erected otherwise than as provided under the said Ordinance. Consequently, by virtue of section 2 of the Ordinance, the provisions of the Cantonments Act in so far as they relate to building control, will not be applicable to any part of the Karachi Division. As against the above, subsection (4) of section 3 provides that the Central Government may by Notification in the official Gazette direct that in any place, declared a Cantonment, under subsection (1), the provisions of any enactment relating to Local Self‑Government other than the said Act, shall have effect only to such extent or subject to such notifications and that any authority constituted under any such enactment shall exercise authority only to such extent, as may be specified in the Notification. No Notification as contemplated under the aforesaid section 3(4) of the Act has been brought to our notice, whereby respondent No.1 or any other body has been authorized to exercise any powers of the Local Government or particularly in respect of building control, within any part of the area comprised in Drigh Road Cantonment Board. The result is that Chapter XI of the said Act will be applicable to the entire area comprised in the said Cantonment Board and no building could be constructed without the sanction .of plan as provided under the said Chapter of the Act.

11. It is by virtue' of the above overlapping powers vested in the said Cantonment and the Authority that both of them are asserting their authority relating to Building Control on the plot of the petitioners.

12. The building control, i.e. the jurisdiction to sanction erection or re -erection of the buildings and to regulate their maintenance has always been a municipal function. Till recently the building control was included within the functions of municipalities in province of Sindh. Section 40(1) of Sindh Local Government Ordinance (XII of 1979) pertains to functions of the councils and states that a corporation shall perform the functions given in Schedule II. Paras. 35, 36 and 37 of Part II of the said Schedule pertain to building control, namely, erection and re‑erection of buildings, completion of buildings and regulation of buildings etc. On promulgation of the Ordinance, the said functions arc to be performed by the Authority constituted under the said Ordinance in so far as Karachi Division is concerned. Section 2 has been incorporated therein providing that nothing contained in any other law for the time being in force shall apply to any matter regulated by the said Ordinance as it appears, in view of the provisions contained in section 40 of Sindh Ordinance XII of 1979.

13. Now, therefore, the, conflict that has surfaced is of importance and it is needed to be resolved as to which of the two respondents i.e. respondents Nos.1 and 2 has jurisdiction to perform the functions relating to building control or for regulation of erection and .re‑erection of the buildings; arid other incidental and ancillary functions or which of the, two statutory provisions should prevail, as obviously the power the aforesaid two statutes arc overlapping each other incidental and ancillary functions or which of the two statutory provisions should prevail, as obviously the powers under the aforesaid two statutes are overlapping cash other.

14. The learned counsel for the petitioners has relied upon Article 143 and Entry No.37 of` Part I of the Federal Legislative List, in the Fourth Schedule of the Constitution of Islamic Republic of Pakistan, 1973 which read as under:‑‑

15. Article 143 of the Constitution

16. "143. If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Majlis‑e‑Shoora (Parliament) which Majlis‑e- Shoora (Parliament) is competent to enact, or to any provision of any existing law with respect to any of the matters enumerated in the Concurrent Legislative List, then the Act of Majlis‑e‑Shoora (Parliament), whether passed before or after the Act of the Provincial Assembly, or, as the case may be, the existing law, shall prevail and the Act of the Provincial Assembly shall to the extent of the repugnancy, be void."

17. Entry No 37 of Part I of the Federal Legislative List .‑‑

18. "37. Works, lands and buildings vested in, or in the possession of Government for the purposes of the Federation (not being military, naval or air force works), but, as regards property situate in a Province, subject always to Provincial legislation, save in so far as Federal law otherwise provides:"

19. In our humble view, the aforesaid entry in the Federal Legislative is not applicable to the present case. The said entry relates to works, lands and buildings vested in or in possession of the Government for the purposes of the Federation. The lands and buildings within the territorial limits of the Cantonment do not necessary vest in or are in possession of the Government for the purposes of the Federation. The plot in question neither can be said to be vested in the Government nor can be said to be in possession of the Government for the purposes of the Federation. The word `property' has been used in generic sense and means any property belonging to the Federation, situated in a province. The said entry does not bring within its fold even such lands, buildings or property which are owned by, vested in or are in possession of a Cantonment because each Cantonment Board is a separate legal entity. Section 11 of the Cantonments Act provides that every Board shall be a body corporate having perpetual succession‑, and a common seal with power to acquire and hold property both movable and immovable and to contract and shall, by the said name, sue or be sued.

20. Although it was not contended before us that all lands situated within the limits of the Cantonment area are vested in or are in possession of the Central Government, the argument by reference to the aforesaid Entry No.37, proceeds, on such assumption. In the case Pakistan v. Province of Punjab and others P L D 1975 SC 37.submission of the similar nature has been dealt with in details and it is observed:‑‑

21. "My examination, therefore, of these provisions, and in particular the provisions of the Cantonments Act of 1924, does not support the contention of the learned counsel for the Government of Pakistan that all lands situated within the limits of the cantonments areas vest in the Central Government. Section 108 of the Cantonments Act provides that all property of the nature therein specified which has been acquired or provided or is maintained by a Board `shall vest in and belong to that Board' and shall be under its direction, management and control. Similarly, under section 110, even where the Central Government has at the request of the Cantonment Board procured the acquisition of any land for the purposes of the Board on payment of compensation, the land shall `vest in the Board' which is a body corporate having its own common seal and independent existence apart from the Government of Pakistan."

22. From the above it is clear that the aforesaid entry does not pertain to the subject‑matter in dispute.

23. In fact nether of the legislative lists contains any entry with regard to Municipal functions generally or building control particularly and therefore, a Provincial Assembly shall and Majlis‑e‑Shoora (Parliament) shall not have power to make laws with respect to Municipal functions or Municipalities as provided in clause `C' of Article 142 of the Constitution.

24. So far as Cantonment is concerned, it is listed in Entry No:2 of the Federal Legislative List Part I which rcads as under:‑‑

25. "2. Military, naval and air force works; local self‑Government in cantonment areas, the constitution and powers within such area of cantonment authorities, the regulation of house accommodation in such areas, and the delimitation of such areas."

26. The word "Local Self‑Government" used in the aforesaid Article is wide enough to include all municipal functions including building control.

27. In Black's Law Dictionary, Fifth Edition, at page 939, the phrase Local Government is defined as under:‑‑

28. "City, Country or other Government Body at a level smaller than a state. Local Government has the‑greatest control over real property zoning and other local matters."

29. It may also be observed that the phrases `Local Government' and `Local Self‑Government' arc interchangeable and have always been used in the same sense. ,

30. For elucidation of the above proposition reference may be made to the statement of objects and reasons given for the Cantonments Act, 1924, the relevant portions whereof read as under:‑‑

31. "A Committee which was appointed by the Government of India‑ in January 1921 to consider what changes were necessary in order to introduce into the administration of Cantonments the spirit of reformed scheme of Government, recommended a complete revision and amalgamation of the Cantonments Act (Act XV of 1910) and the Cantonment Code, 1912, in order to bring into conformity with ordinary municipal law the system under which military cantonments are administered:"

32. It then goes on state:

33. "It is proposed to take power to municipalize the government of those Cantonments which contain a substantial civil population having no essential connection with or dependence upon the military administration:'

34. Thus, it will be seen that the very object which is sought to be achieved by enactment of the Cantonments Act, 1924 is to municipalize the administration of such Cantonments that contain a substantial civil population by conferring powers of local self‑Government on the said cantonments.

35. The subject "Local Self‑Government in Cantonment areas'' having been enumerated in the Federal Legislative List, clause (a) of Article 142 of the Constitution is attracted and no law enacted or promulgated by the Provincial Legislative authority can prevail upon the Cantonments Act, 1924.

36. There is, therefore, no escape from the conclusion that building control within the limits of respondent No.2 is to be regulated under the Cantonments Act, 1924, and the provincial laws on the subject will not be applicable to the buildings erected or intended to be constructed on a plot situated within the territorial limits of the said respondent. It is not necessary that any provisions of the Sindh Building Control Ordinance, 1979 should be declared as repugnant in terms of Article 143 of the Constitution and as observed above it shall suffice to say that provisions of the Ordinance cannot be enforced within the limits of respondent No 2.

37. In view of the above it is declared that respondent No.1 has no control for the purposes of approval. of building plan over the areas falling within the jurisdiction of respondent No.2 and the impugned notices dated 2‑7‑1989 and 19‑10‑1989 issued by respondent No.1 are without lawful authority and of no legal effect. The petition is allowed as above with no order as to cost.

38. A.A./Z‑188/K Petition accepted.