Plaintiffs have moved this application under order XXXIX, rules 1 and 2, C.P.C. for restraining orders against the defendants.
2. Brief facts of the case are that the plaintiffs have instituted this suit for declaration and permanent injunction with respect to the construction raised on Plot bearing No,86-S, Block 2, PECHS, Karachi (hereinafter referred to as the said Plot). Plaintiff No,1 is a non-Governmental organisation registered under the Registration Act, 1960 functioning to ensure preservation of nature and city environment and to ensure that the buildings are constructed in accordance with law and regulations while plaintiffs Nos.2 to 5 are residents of the same area. Defendants No,1, K.B.C.A. who has approved the plan. Defendant No,5, the owner of a building raised construction on the said plot called "Raja Terrace" and defendant No,6 a Bank purchased the entire area on the ground floor of Raja Terrace integrated it into one unit by not raising the partition walls for operation of one of their branches. The plaintiffs have challenged the conversion of said plot from residential to commercial, and approval of the building plan and construction of building on the said plot alleging to be violative of law and building regulations.
3. Mr. Naeem-ur-Rehman, learned counsel for the plaintiff, has argued that the plaintiffs Nos.1 to 5 being the residents of the area have a vested rights to seek enforcement of the Town Planning laws and to enjoy easements as well as environment protection which are protected by the Town Planning Laws framed with the object of meeting the goal's of modern city planning which include the orderly arrangement of parts of the city, residential, business, industrial etc., an efficient system of circulation within the city and to the outside world, using to the maximum advantage all modes of transportation, the development of each part of the city to optimum standards, the provision of safe, sanitary and comfortable housing, the provision of recreation, schools and other community services, the provision of adequate and economical water supply, sewerage, utilities and public services as held in the case Of Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512. In support of his contentions learned counsel has referred to the documents annexed to the plaint to show that the said plot was initially leased for residential purposes which was subsequently converted to a commercial plot after approval from the Ministry of Works, Environment and Urban Affairs on payment of the prescribed commercialisation charges as advised vide their letter dated 26-2-1995 followed by no objection after payment of commercialization charges at Rs,400 per sq. yards with no objections dated 29-3-1995 for conversion of the said plot to a commercial plot in view of NOC by K.D.A. vide their letters, dated 2- 7-1984 and 12-4-1994. The plaintiffs objected to the grant of the NOC vide letter dated 19-8-1995 but in spite of their objections the building plan for basement plus three storeys was approved.
Learned counsel further contended that the booking of the flats was commenced in 1995 without prior permission of KDA in violation to the provisions of section 12 of the Sindh Buildings Control Ordinance. On the commencement of the work plaintiff raised objections vide their letters dated 27-3-1993, 14-4-1997, 5-5-1997, 21-5-1997. Their objections were turned down by the defendant No,1 KBCA vide their letter dated 23-5-1997 confirming that the commercialisation of the said plot was allowed in 1983 and that environment N.O.C. was not a condition for final approval of the building plan. However, plaintiffs continued to point out the irregularities as stated in their letters Annexure 12/G, 12/L to the plaint which led to issue of show-cause notice to defendant No,5 on 3-12-1997 and withdrawal of the proposed building plan on 13-12-1997. Plaintiffs have also annexed subsequent letters dated 15th December, 1997, 17th December, 1997, 19th December, 1997 that led to sealing of booking office of the defendant No,5 vide letter dated 19-4-2001. It appears that the premises was desealed after representations by defendant No,5 which was followed by complaints vide letter, dated 10-6-2002. 8-7-2002, 31-7-2002, 9-8-2002 and 26-8-2002. Learned counsel further contended that in the meantime the construction was completed and defendant No,6 purchased and occupied the entire portion on the ground floor for operation of a branch of their Bank.
Objections in this regard were also raised by the plaintiffs directly with the Bank.. Comparative analysis of the various plans with respect to the said plot has been filed as Annexure "26/A" showing the latest position of the structure.
Mr. Naeem-ur-Rehman, learned counsel for the plaintiffs, after referring to the documents annexed to the plaint has argued that in spite of continued objections by plaintiffs the construction has been raised in violation of the provisions of sections 6(1) and 6(2) of the Karachi Building and Town Planning Regulations, 2002 as the same is contrary to the building plans and the premises cannot be occupied. He has also contended that the conversion of the said plot from residential to commercial is in violation of the Karachi Building and Town Planning Regulations as provided under Schedule 4a and 4b as the conditions prescribed therein have not be adhered to while allowing the conversion. He further contended that as a consequence of the above violations no title passed on to defendant No,6.
Further arguments were advanced by Miss Rizwana Ismail on 17-10-2002. She stressed that the orders of the defendants pertaining to conversion of plot, desealing of the premises and approval of plans were all void orders in view of the decisions of the superior Courts reported in PLD 2001 SC 514, 2001 MLD 1101, 2001 CLC 1187, 1990 MLD 563, PLD 1963 SC 486, PLD 1961 SC 105, 1995 SCMR 723, 1985 CLC 974, 1993 MLD 521, 1987 SCMR 1119, PLD 1990 Kar. 9, 1997 MLD 1934, 1999 MLD 175, 1999 MLD 331, 1999 MLD 268, 1998 MLD 1278, 1987 CLC 558, 1990 CLC 83, 1993 SCMR 1510, 1999 MLD 3209, 1990 CLC 448, PLD 1998 Kar. 283, 1993 SCMR 1654, 1995 SCMR 339, 1994 SCMR 279, 1997 SCMR 1901, 1991 SCMR 483, PLD 1972 SC 279, PLD 1983 Kar. 387, PLD 1994 SC 512, AIR 1969 SC 430, AIR 1957 SC 529, (1975) 1 All ER (FB), 2001 MLD 92, 2001 MLD 224, 1999 MLD 3209, PLD 1998 Kar. 373, PLD 1973 SC 49, PLD 1989 SC 26, 1998 MLD 1771, 1999 MLD 3199, 1992 MLD 527, PLD 1994 SC 512, 1999 SCMR 2883, PLD 1988 Kar. 283, 1996 CLC 417, 2001 CLC 1312, 2000 SCMR 1748, 1992 CLC 2540 and PLD 1993 Kar. 631.
4. In reply to above Ms. Zahida Naqvi, Mr. Muhammad Aziz Malik and Mr. Liaquat Merchant have appeared and have argued on behalf of defendants Nos. 1, 5 and 6 respectively while opposing the injunction application.
5. Ms. Zahida Naqvi has argued that defendant No,1 is a competent authority conferred with the powers to act under the law. She contended that the objections raised by the plaintiffs were considered and after appropriate orders the authority in pursuance of the powers conferred upon it allowed the approval of building plans of the said plot, the construction has been raised in conformity with the plans. Mr. Asghar Ali Rizvi, Deputy Controller, KBCA, has also appeared and has produced the record and after confirming from the record stated that only objection raised with regard to the construction by KBCA is as follows:-- "Oh inspection of the site, following irregularities have been observed: The drawings submitted are showing that no partition walls are provided on the ground floor as per approved building plan. This is giving an impression that the ground floor will be utilized for a Multipurpose office or Bank."
However, according to learned counsel, it only constitutes a minor deviation not pertaining to any additional construction but regarding non-raising of some partition walls within the covered area neither affecting the use of property nor has constituted any major deviation and the revised plans are already under consideration. She further contended that revised plans and regularisation can be allowed as permissible under relevant provisions.
6. Mr. Muhammad Aziz Malik for defendant No,5, after going through the prayers in the plaint and the contents of the injunction application has contended that the relief, even if granted, would not affect defendant No,6 who has already acquired title and is in occupation as a registered lessee.
He further argued that the construction has already been completed in accordance with the building plans without any significant deviation. He objected to the maintainability of suit as the provisions of section 20(a) of the Sindh Buildings Control Ordinance, 1979 has not been complied with. He has further argued that the orders pertaining to the commercialisation of plot after issue of no objection by KBCA on 2-7-1983 and finalised on 5-9-1995 was not challenged which attract Article 14 of the Limitation Act and this fact being well within the knowledge of the plaintiffs is now time-barred under Article 14 of the Limitation Act which provides period of one year. Reliance is placed on the cases of Ghulam Muhammad and others v. Hafiz Ahmad and others PLD 1960 Lahore 1179 and Muhammad Siddiq v. Punjab Province and others PLD 1958 Lah. 458. He has further argued that the construction has been raised after obtaining the express consent in writing from the Ministry of Works in pursuance of the clause 7 of the lease deed and it is not for the plaintiffs to challenge the covenants thereof.
7. Mr. Liaquat Merchant after analysing the chronological developments with respect to the said plot from the initial stage of commercialisation to the present construction as also set forth in the "Fact Sheet" annexed X/5 to the counter-affidavit and after going through the relevant record available on the case file, contended that all the objections raised by the plaintiffs from time to time were considered before filing of this suit, the property was sealed and thereafter in pursuance of the legal and valid orders the same was desealed. He contended that the construction plans have been adhered to and the present construction is in conformity with the same. He has further contended that for the purposes of the present application all the three basic factors of a prima facie case, balance of convenience and irreparable loss are all in favour of defendant No,6 and the application is liable to be rejected.
8. On an objection that the defendants intend to convert the basement reserved for car parking facility for some other use, separate statements are also filed on behalf of defendants Nos.5 and 6 which are taken on record, in which they have confirmed that the basement is for car parking and shall not be utilised for any other purpose.
9. After hearing the learned counsel and perusal of the record the admitted position which emerges is that the construction has been raised in accordance with the approved building plans; no additional construction in violation to the building plans has been raised; the defendant No,6 is already enjoying the title under duly executed document; the property is situated on a main road already commercialised to a good extent though the plaintiffs are residents of the same Society they are not the immediate neighbours; the regularisation plan has already been submitted. The case-law cited by learned counsel for the plaintiffs pertain to unauthorised structure raised without approved building plans which is not attracted to the facts and circumstances of the present case and are distinguishable as in the instant case the provision of law has not only been complied with but in pursuance of the objections the construction was sealed on more than one occasion. It was only after a detailed inquiry and consideration that it was desealed even during the construction stage and the plaintiffs were fully aware of the conversion of the plot throughout but allowed significant time to elapse. In view of the foregoing considerations I am of the humble opinion that by allowing present application to restrain the defendants from exercising the powers conferred upon them under the law would be contrary to the public purposes for which the special law viz. the Sindh Buildings Control Ordinance, 1979 has been enacted.
10. The above facts lead to the conclusion that the defendants have from time to time complied with the objections and have raised construction according to the approved building plan except for minor deviation, not of a significant nature that are pending consideration in the shape of absence of partition walls for which a revised plan has been filed. Main road on which the property is situated is also subject to commercial activities and there is no likelihood of irreparable loss to the plaintiffs calling for interference.
11. Plaintiffs have prayed for several reliefs in their application. Before institution of the present suit defendant No,6, after purchase, occupied and furnished the property now owned by them and continue to enjoy the possession as stated in the counter-affidavit and several photographs attached therewith as Annexure "X/9". The violation of provisions of section 6(2) of the Sindh Buildings Control Ordinance, 1979, if any, would, therefore, be a subject-matter of proceedings under the provisions of the Sindh Buildings Control Ordinance, 1979, therefore, no restraining orders are either prayed for nor are required to be passed as against defendant No,6. However, defendant No,5 is restrained from allowing any further occupation of the building in contravention of section 6(2) of the Sindh Buildings Control Ordinance, 1979 till such time as the occupancy certificate, as required under section 6(2) is issued by the authority. The prayer for interim orders to prevent defendant No,1 from acting and exercising its power conferred according to the special law does not merit consideration against these public functionaries as any action in contravention of law is always subject to scrutiny. Section 20 of the. Sindh Buildings Control Ordinance, 1979 is not attracted so far as defendants Nos.1 and 6 are concerned, therefore, the suit is maintainable.
12. The application, is, therefore, disposed of in the above terms.