PRESENT:

BEFORE LAHORE DEVELOPMENT AUTHORITY COMMISSION,

LAHORE

Mr. Najam Saeed, Chairman.

Mr. Javaid Akhtar, Member.

Reference No. 15/2015

Mst. Farzana Shuja-ur-Rahman Lak, Plot No. 237, Block AlIII,

Gulberg III, Lahore

Applicant

Vs.

Lahore Development Authority through Additional Director General

(Housing) IAuthorized Officer, 467/0-11,Main Boulevard, M.A. Johar

Town, Lahore.Respondent

Order

The applicant vide One Window NO.2218213dated 02-11-2015

submitted an application for filing a reference to the LOA Commission. The

Additional Director General (Housing) IAuthorized Officer, LOA, filed this

reference under sub-section (4) of section 32 of the LOA (Amendment) Act,

2013 read with sub-rule (1) of Rule 7 of the Lahore Development Authority

Commission Rules, 2014 in respect of the illegal construction made on Plot

No. 237, Block AlIII, Gulberg III, Lahore. Reference received on 11.12.2015

was entered in the Institution Register at Serial No.15 of 2015. Notice along

with a copy of the reference filed by the LOA was sent to the applicant forsubmission of their written reply. Mr. Zahid Zafar Khan appeared on behalfof the applicant. Miss Saleha Shahid, Dy. Director and Mr. Sikandar Haroon,

Assistant Director, Town Planning, LOAappeared on behalf of the LOA. The

. • 1 ~~~S~/\b7r~~\\{:, ,

parties heard and the site of the plot was visited by the Commission in the

presence of the representatives of the parties on 05.01.2016, 03.02.2016

and on 04.04.2016.

Facts of the case as contained in the reference are as under:-

• A commercial building plan comprising of one basement (parking),

Ground floor and 10 upper floors was submitted on 28.12.2005. The

plans up to plinth level were released on 20.03.2006.

• On completion of construction upto plinth level owner applied for the

release of upper floor plans on 07-07-2006. As per policy a letter for joint

inspection was forwarded to Town Nazim Gulberg on 18-07-2006 and

accordingly site was jointly inspected by Director Town Planning and Town

Nazim Gulberg and after receiving joint inspection report from Town Nazim

Gulberg on 29-08-2006, plans up to 38 ft height were released on

09.10.2006.

• After completing construction upto 38 feet height, owner again applied

for the release of plans of upper floors on 31-10-2006. And again joint

inspection letter was forwarded to Town Nazim Gulberg on 03-11-

2006. Site was again jointly inspected by Director Town Planning and

Town Nazim Gulberg and after receiving joint inspection report from

Town Nazim Gulberg on 05-12-2006, plans up to 150'-0" were

released on 21.12.2006.

• As per report of field staff owner started doing excess coverage

therefore notices U/S 40 of LOA act 1975were issued on 05-01-2007.

• Owner of the plot got stay order from the Civil Court of (Mr. Amjad AliBajwa) on 21-02-2007 in which LOA was restrained to demolish the

construction.• After that owner submitted revised building plans on 06-06-2007. The

plans were under process when High Rise Building Commission

inspected the site on 19-06-2007 and made certain observations as

under:

,

~

• Width of ramp is 16 feet against required 18 feet.

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• Building has been projected about 3 feet in width from 1st

floor to top floor.

• Width of emergency stair case is less than 3 feet and main

stair case is 3'-6" instead of required 4 feet.

• Owner submitted an application to the High Rise Building Commission

(HRBC) by stating that he may be allowed to continue the construction

as some of the violations were mistakenly noted by the Commission

i.e. Width of ramp is 16 feet against required 18 feet.

• The application of the owner was sent to Mr. Kamil Khan Mumtaz,

Architect Member of the Commission who admitted that width of ramp

for parking shown as 16 feet in the approved plan was in accordance

with the relevant regulations of LOA for the year 2005 and that the

width of ramp to be 18 feet was noted by him under a mistake of fact.

3. The HRBC directed the owner to remove the irregularities and

directed the LOA to make sure these violations are removed. As per LOA

reference building stands completed upto 9th floor:

Sr.No Non-Compoundable Compoundable ViolationsViolations

1. Building has been projected in sidespace about 3 feet in width from 1stfloor to top floor due to which excesscoverage of 8739 sft done.

2. Guard roomconstructed in setbackspace.

3. Double storey roomsconstructed in rearspace.

4. Generator and steelstairs installed in sidespace

5. Width of emergencystair case is 3 feet andmain stair case is 3'-5"instead of required 4feet.

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4. The representative of the LOA was asked to prepare a detailed

report regarding the violations. The report prepared by the Dy. Director, TP

is reproduced below:

1. Ramp and toilet for disabled persons are missing.2. Rear mandatory space is 12'-10", instead of 13'. Due to which excess

coverage is 6.33 sft.3. About 3' building is projected in all 4 sides therefore, causing excess

coverage of 9650 sft.4. There is excess coverage of 2949.2 sft & 703.4 sft on 9th and 10th floor

respectively.5. 11th floor is also constructed illegally covering area of 843.55 sft. It is

currently being used for the installation of Cooling Plant.6. Circular fire escape stair case area measuring (6'*6') reserved on 9th & 10th

floor each is used for other purpose. So, violation of total area of 72 sft.7. Area reserved for emergency stair case (6'*7') is used for other purposes

thus, causing total coverage of 420sft.8. Width of emergency stair case is 3' & 3'9" and main stair case is 3'6" & 4'2".9. Width of access stair from 9th to 10th floor is reduced to 2'-8".10.On ground floor, parking space reserved for 12 Cars in approved plan

(dated 07-10-06) is converted into hall and lobby (38'*54') measuring 2052sft.

11.Hence, excess parking requirement generated due to hall (1678.25 sft) is3.36 Cars.

12.Hotel comprised of 73 rooms (on 2nd to 8th floor). So, parking requirementfor hotel area is 12.17 Cars.

13.1st floor and 10th floor is being used as restaurant (1791 sft), cafe (793.32sft) and gym (698.69 sft.). Hence creating parking demand for 6.6 cars.

14.Office area on basement (195 sft) and on 2nd floor (686.85 sft) is requiringparking space for 0.88 Car.

15.Space reserved for 7 Cars measuring 896 sft in basement is used for otherpurposes. Moreover, in the light of above mentioned uses, total parkingrequirement at present is 23 cars but, there is shortage of 12 Cars.(Note: Car parking is not applied on 9th floor as it is not yet completelyconstructed. May be decided by the Commission.)

16.Space reserved for 61 motor cycles in basement measuring 915 sft is usedfor other purposes. At present, parking required for motor cycles is 3.68 no.of motor cycles, which is not provided.

17.According to clause 5.3.6 (C), the basement if used for other purposes thancar parking shall be constructed after leaving all the mandatory openspaces. But at site, mandatory spaces are mainly covered in the basementfor constructing office, laundry, workshop and mosque.

A copy of the above report was handed over to Mr. Zahid Zafar,

representative of the applicant.

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5. The Commission visited the site again on 04.04.2016 in the

presence of Miss Saleha Shahid, Dy. Directed TP and Mr. Zahid Zafar the

representative of the applicant. Measurements were rechecked. It was

observed that the Guard Room constructed in the set back and the double

storey rooms constructed in the rear space have been demolished. However

the Commission made following observations during the visit:

I. The width of the building is 38'-5" against approved 38 ft.

Similarly length of the building is 102'-7" against approved 102'.

Therefore, an area of 64 sq.ft. from the setbacks has been added

in the building which is a non-compoundable violation.

II. Building is projected on all the four sides by 3ft. from the 1stto

the 10thfloor.Projections from the 1stto the 9thfloor are calculated as

under:

Sides area (102.58x3x2) = 615.48 sft.

Front and Rear area (44.41x3x2) = 266.46 sft.

Total area of projection on one floor = 881.94 sft.

Total area of projection of 9 Floors = 7937 sft.

iii. Projections on the 10thfloor are as under:-

Right side (48.16x 3) =Left side (56x3) =Front side (44.41x3) =

144.48 sft.

168 sft.

133.23 sft.

Total projections on 10thfloor = 446 sft.

Total area of projections (ii) + (iii) = 8383sft.

iv. An area of 600 sft. has been covered on the 11thfloor without

approval of plan. But since this area is being used for cooling

plant, it has not been included for calculation for extra car parking

requirement.6. The main non-compoundable violation in this case is conversion

of basement meant for parking and the usage of area approved for parking

on the ground floor for other usages which has resulted in shortage of

parking. In the basement, office, laundry, workshop and mosque have been. ~>\. ~\~ 5 ~§~~~~--;,l~~\l6-

constructed. On the ground floor the parking area has been converted into a

Seminar hall. The owner and her representative have committed that they

will remove the constructions in violation of approved plan in the basement.

If the owner and management fulfill its commitment, the car parking will be

available for 16 cars and 61 motorcycles in the basement and for two cars in

the front setback. Even then shortage of parking for five cars will remain in

which the car parking requirement for the 9th floor is not calculated.

7. Provisions of inadequate parking or conversion of car parking

area into other usages is a serious non-compoundable violation under the

regulation No. 10.11.1 of LOA Building and Zoning Regulations 2007. This

is not an issue only related to urban development regulations but it is public

importance matter concerning general public welfare. Shortage of car

parking resulting from the inadequate parking provided by the owners of high

rise building ultimately affects the public services. If the owners of high rise

buildings will not provide car parking as stated in the plan or use the area

reserved for car parking for other usages, it will augment the traffic hazard

and traffic congestion on roads and public places. Such a violation will be at

the cost of public interest and will aggravate the ever increasing parking

problem in the City particularly in commercial areas.

8. Since the shortage or non-provision of car parking is non­

compoundable violation, therefore, the Commission has to determine the

rate of penalty. Clause (c) of sub-section (5) of Section 32 of the LOA

(Amendment) Act, 2013 provides as follows:-

"(5) The Commission shall consider and make appropriate

recommendations on matters relating to-

(c) illegally constructed structures, give recommendations in

order to regularize such structures, if deemed appropriate,

requiring the owner to adhere to the appropriate law, rules and

regulations, recommending such conditions, modifications,

amendments, fines, penalties, demolitio~nt~ctu. res.ac.c.ordin~.to the nature of each case." ~ .....i". \, ._ . 0~Q-,

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Clause (c) of sub-rule (3) of Rule 8 of the Lahore Development Authority

Commission Rules, 2014 further elaborates the provisions of the Act ibid as

under:

(3) The Commission may, by majority, make appropriate

recommendations which may include;

(c) Illegal construction:

(i) demolition by the applicant;

(ii) demolition by the Authority and recovery of dues and fines by

it",

(iii) rectification of the illegal construction and apportionment

of the responsibility or cost to each party;

(iv) partial demolition and recovery of cost thereof;

(v) determination of rights and obligations of the parties in the

event of demolition; and

(vi) approval of plan and construction, subject to payment of

fees and penalties to the Authority.

This being so, the Commission can make appropriate recommendations

including imposition of penalty for non-compoundable violations, according

to the nature of each case in the light of the above quoted provisions.

9. Chief Engineer, Traffic Engineering Planning Agency (TEPA)

was asked to work out car parking per Kanal and cost of construction of

parking at public places per sq. ft. According to TEPA maximum 4 cars can

be parked in one Kanal and estimated construction cost of parking is Rs.

3500/- per sft. The rate of Rs. 3500/- per sft. calculated by TEPA is not

disputed but the Commission cannot agree with the working of 4 cars per

Kanal which seems unreasonable. The Commission, therefore, has worked

out area required for each car on the basis of prescribed criteria in the

Regulation No. 5.3.3 of the above mentioned Regulations as under:

• Stall area for one car

• Minimum area for drive way (9 ft. length x 8 ft. width) 72 sft.• Minimum area required for ramp (30 ft. length x 18 ft.

width) 540 sft.• Area per car worked out on the basis of 24 cars in a two

Kanal plot 22 sft.• Additional area for the pillars of 2ft. x 2ft. size taking

average pillar to pillar distance18 ft. (2ft. x 25 ft.) 50 sft.

Minimum parking area required for one Car 272 sft.

On the basis of requirement of area of 272 sft. for one car, the penalty

calculated at the rate of Rs. 3500/- for provision of parking at the public

expenses comes to Rs. 9, 52, 000/-. In the present case there is a short fall

of area for 5 cars as discussed above provided hotel management makes

available space for parking of 16 cars and 61 motorcycles in the basement.

The penalty for shortage of 5 cars comes to Rs. 47, 60, 000/-. The above

requirement of car parking and the penalty has been worked out tentatively

without considering the usage of the 9th floor which still requires finishing.

Exact car parking requirements, actual shortage of car parking and amount

of penalty on the above fixed rate shall be calculated on the basis of the

revised plan which will be submitted by the applicant. In case the above

recommended penalty rate is not acceptable to the applicants, they may opt

to rectify the violation by removing structure by creating additional space for

car parking on the ground floor, which can be done without any damage to

the main building structure.

10. Shortage of car parking and conversion of parking area are two

violations under above mentioned Regulation No.1 0.11.1. The applicant has

converted an area of 2052 sft. as per measurement at site. Thus an excess

area 2052 sft. has been created for use as Seminar Hall. For compoundable

violation penalty for excess area has been prescribed @ Rs. 904 sft. The

violation committed by the applicant is non-compoundable. Hence a penalty

twice the rate of compoundable rate is recommended to be imposed. The

penalty on this account comes to Rs. 37, 10, 016. If the applicant converts

the Seminar Hall again into car parking she will be not I,~,~O this penalty. t\_ ~QO-/\

8 -~~:-- 6;=7\~t-ll\ -~ ''-- 't l.. ".....

11. Building is projected on all four sides by 3ft. from the 1st to the

10th floor. Total area of projections comes to 8383 sft. which though forms

integral part of the authorized building but violates space regulations. It is a

compoundable violation and penalty thereof has been provided in the

Building Regulations, 2005 under which the building plans were processed

and approved. Penalty for the compoundable violation, therefore, is imposed

at the rates provided at serial No. 1 of the Appendix-O of the Regulations

ibid, which is Rs.226 per sft. for the 1st and the subsequent floors. Total

amount of penalty on this account is calculated as Rs. 18, 94, 558/-

12. So far as the Generator placed in the side space is concerned, it

is not a permanent structure and at the same time, it is an essential

requirement due to electricity load shedding problem. As no regulations

existed in respect of the placement of the generators at the time of approval

of building plans, it is recommended that the generators should be

temporarily allowed to be placed in the rear set back at the opposite end of

the emergency exit stairs by demolishing the decorative arches illegally

constructed in the side and rear setbacks. LOA should consider that in future

site for placement of generators should be specifically indicated in the

building plan within the building line or in some additional space in the

setbacks.

13. Width of the main stair case is 3'-5" instead of required 4 feet and

at floor No.9 & 10 the width of the stairs is 2'-8" only. Width of the stairs at

floor No.9 & 10 should be increased if it is possible without much damage

to the structure of the building in consultation with the Architect and the

Structure Engineer. However, shortage of the width on the 1st to the 8th floors

is recommended to be condoned and regularized on payment of a penalty of

Rs. 10,000/- per floor. Total penalty would be Rs. 80, 000/-. In case the

Architect and the Structure Engineer advice that width of the stairs at the 9th

and 10th floor cannot be rectified without damage to the structure, then it

14. The Honourable Lahore High Court vide its order dated

01.03.2013 in Writ Petition No. 1619/2003 constituted a Fire Safety

Commission. According to the order dated 11.07.2013 in the above

mentioned petition, the Commission constituted by the High Court, inter alia,

recommended;

"External steel staircases must be installed at all high-rise building

above 38 feet for safe evacuation, where exits are not already

available."

During hearing on 27.09.2013 Additional Director General, LDA submitted

before the Honourable High Court that the recommendations of the Court

were being seriously considered by the LDA for incorporation in the new

regulations. Although this Commission could not find any regulation to

implement the above mentioned recommendations yet considering the

commitment of LDA before the Honourable High Court, the steel stairs in the

side set back are held to be in line with the recommendations of the Fire

Safety Commission and has to be allowed for the time being. As far as, the

width of emergency stairs is concerned it cannot be condoned since it is

essential to ensure safe passage during an emergency. Therefore it is

recommended that applicant should rectify the width of stairs according to

Regulations.

15. In the present case the area where emergency stairs were to be

provided as per approved plan, has been used by the owner for other

purposes.The owner by shifting the emergency stairs outside the building in

the open space against the approved building plan have committed a non­

compoundable violation and also has created additional useable space

within the building. Being a non-compoundableviolation no penalty has been

prescribed in the Regulations underwhich the building planswere approved.

Therefore, the penalty for non-compoundable violation is to be decided by

the Commission. In cases of non-compoundable violations the contentionthat the penalty should be calculated on the basis of the rates prevalent at

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the time of construction, cannot be accepted because

shown in the cases of non-compoundable violations. The present rate of

excess covered area in respect of the compoundable violation is Rs. 904/­

per sft. for the ground floor and Rs. 6001- per sft. for the upper floors. In this

case the alternate arrangement has been made therefore the penalty twice

the rate of similar compoundable violation is recommended to be imposed.

The amount of penalty is worked out as under:

Excess area on the ground floor. 6ft.x7ft=42 sft. @

Rs.1808/- sft. Rs. 75, 963/-

Excess area on the upper floors 42sftx9=378 sft. @

Rs.12001- sft. Rs. 4,53,6001-

However if the applicant decides to avoid penalty and provide the emergency

stairs at its original place as approved in the plan, without much damage to

the structure of the building and re-construct in consultation with the Architect

and the Structure Engineer, the penalty will not be imposed.

16. The excess coverage on the 9th, 10th and 11th floors if exceeds

the prescribed coverage under the Regulation has to be dealt in accordance

with the Regulations under which the building plans were approved keeping

in view the height restrictions and floor area ratio. In case the covered area

as per revised plan does not violate building height restrictions or floor area

ratio, no penalty is to be imposed.

17. At the time of inspection, the Commission observed that an area

of 64 sqf. has been added in the building out of the mandatory setbacks.

Although the reduction of the setbacks is a marginal one, yet it is a non­

compoundable violation under the Regulations which were applicable in this

case at the time of approval of the plans as well as under the presently

prevailing Regulations. The Honorable Supreme Court in the case of MIs

Tricon Developers condoned the similar setback violation by imposing a

penalty of Rs. 3,000,0001- for the area of 432 sq. ft (length of Tricon building

216 ft. x 2 ft. included in the building line out of 13 ft. side setback). The said

penalty was paid by MIs Tricon on 08-10-2008. The rate~sq. ft. comes to \/" \

.. , \, - ~1Cj ~Q_/~ 11 -()~t~~(C6--~

Rs. 6,944/. At that time the price of commercial land on the Jail Road falling

in Gulberg as per DC's valuation table, was Rs. 15,00, 000/- per Marla i.e.

Rs. 6666/- per sft. Thus the penalty imposed was slightly above the then

prevailing price of the commercial land as per DC's valuation table. In order

to evolve uniform criteria for imposition of penalty for the non-compoundable

violation of setback area, the Commission feels that such violations should

not be ignored and a heavy but a uniform penalty keeping in view the

location, should be imposed. In fact it should have been at the rates actually

prevailing in the market since the owner is covering the area for his or her

own benefit. But determination of actual residential and commercial prices

prevailing in the market is almost impossible due to concealment of the

actual transaction prices. Therefore, it would be fair if the commercial price

as per DC's valuation table be taken as basis for determination of penalty for

all kinds of high rise buildings on the main roads as the land on such roads

is considered commercial whether the high rise building are constructed for

commercial activity or residential apartments or for any other use. Adoption

of DC' valuation table is also well justified as the rate will vary according to

the location of the building wherein such violation has been committed. The

rate of penalty as per DC's valuation table will not be too harsh or too lenient.

It will still be much less than the market value of the excess area even at the

sale rate of the residential apartments. Therefore, the Commission has

decided to recommend that in the cases of above discussed non­

compoundable violation, it will not be unfair to charge penalty determined on

the basis of commercial rates of the DC's Valuation Table as on the date of

filing of reference in the Commission. Those who have committed an illegality

cannot be leniently dealt with and they must also suffer for the delay. As per

DC's valuation table applicable on the date of filing of the present reference,

the rate in respect of commercial properties falling on the Gulberg Roads is

Rs.18,00,000/- per Marla i.e. Rs.8000/- per sft. Therefore, penalty @ Rs.

8000/- per sft. for the 64 sft. area (included by the respondents in the building

line out of the setbacks), is recommended to be imposed. The total amount

of such penalty comes to Rs. 5,12, 000/-. \'\ ~() )- ------'"-::-~ \

12

18. The summary of penalties discussed above is given below:

Tentative penalty for shortage of car parking Rs.47,60,000

Penalty for conversion of car parking Rs. 37,10,016

Penalty for excess coverage i.e. projections Rs. 18,94558

Penalty for conversion of emergency stairs for other use Rs. 5,29,563

Penalty for setback violation. Rs. 5,12,000\

Penalty for shortage of width of main stairs Rs. 1,80,000

Total amount of Penalties Rs. 1, 15,86, 137

19. The above amount of Rs. 1, 15, 86, 137 is subject to variation in

accordance with final car parking requirement to be determined in the light

of the revised plan to be submitted by the applicant and removal of violations

in the basement. In case any of the above recommended penalties is not

acceptable to the respondents, they may opt to rectify the violation to avoid

the penalty.

20. In case of any patent error or omission apparent from the face of

the record, is subsequently discovered in any or all the above measurements

or computations, the Commission may rectify the same on an application by

either party after affording an opportunity of being heard to the other party.

21. In view of the above discussed facts, the record perused, the

evidence examined and discussions made with the representatives of the

LOAand the applicant, recommendations of the Commission are as under:-

1) The applicants shall provide ramp and toilet for disabled persons

which cannot be condoned even by imposition of penalty.

2) The respondents will revise the building plans accordingly, either

by rectification of the violation or payment of penalty asdiscussed above. The revised plans submitted by the

respondents will be processed expeditiously by the concerned

Director Town Planning and if they line with these

~~ ..~..c0__________ -- ------i-----.,6lt~l1\l6

13

recommendations and have no other non-compoundable

violation, those will be accepted within four months from the date

of submission of the revised building plans at One Window by

the respondents.3) Unless the respondents file an appeal, they can opt at any time

after receipt of this order but not later than 15 days after the

expiry of the period of appeal, to rectify the above discussed non­

compoundable violation. In case they opt to rectify the non­

compoundable violation, they shall ensure that the violation is

rectified before they file the revised building plans.

4) Within 30 days after clearance of the building plans or after the

expiry of the above mentioned period of four months, whichever

is earlier, Challan for payment of the above determined amount

of Rs. 1, 15, 86, 137 simultaneously along with the Challan( s) for

the amount of any other penalties @ rates of 2005 Regulations

for the for compoundable violations already committed, if any,

not discussed above or not mentioned in the present reference

by the LOA as well as any other charges recoverable from the

respondents as per law, will be issued by the LOA to the

respondents, which shall be paid by the respondents within 60

days of the receipt of the Challans by them. In case of any

difference of opinion as regards the final amount of penalty

determined on the basis of the revised plan duly approved, the

matter may be referred to the Commission on applicant's request

to determine the final amount of penalties in the light of these

recommendations.5) In case the respondents, instead of payment of penalty for the

non-compoundable violation, opt to rectify it, the amount of

Challan will be reduced accordingly. Rectification of violations, at

the option of the respondents, will be ensured by the LOA before

the approval of the revised plans.6) It is further recommended to resolve the issue that on payment

of the above amount, the issuance of Com

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be ensured by the LOA within 60 days of the payment of theabove amount or on completion of incomplete work, if any,

whichever is later.7) In case the applicants do not opt for payment of penalty and do

not demolish the illegal construction or rectify the non­

compoundable violation, the illegal construction shall be

demolished or violation shall be rectified by the LOA at the cost

and risk of the applicants and car parking at in the basement and

on the ground floor shall be restored by providing approach ramp

for ground floor parking. Till the time of the rectification the

building may also be sealed.

...

Member, LOAC Chairman, LOAC

Announced

07.04.2016

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