' This revision application is directed against the order passed on 11-7.1977 by a learned Additional District Judge, Karachi, whereby he accepted the appeal filed by the respondents herein, set aside the order passed by a learned Civil Judge, Karachi, on an application filed by the respondents under Order XXXIX, rules 1 and 2, C. P. C., and restrained the applicants from raising a five-storeyed building on their plot in Garden East.
2. The applicants, who are the owners of Plot No, 307/2, Garden East, started raising construction of a five-storeyed building on their plot, after obtaining permission from the Collector, Karachi, a 'no- objection certificate' from the K. D. A. And approval of the plan of the building from the K. M. C. The respondents, who are owners of plot No, 393, Garden East, which plot is on the other side of Britto Road from the plot of the applicants, filed a suit against the applicants, being Suit No, 1882/1972, praying for a declaration that the applicants were not entitled to raise construction on their plot beyond ground and first floor and for a perpetual injunction restraining them from raising any higher construction. Alongwith the plaint, an application under Order XXXIX, rules 1 and 2, C. P. C., was also filed by the respondents praying for a temporary injunction restraining the applicants from raising construction beyond the first floor. The learned trial Court initially ordered status quo to be maintained but ultimately it vacated the said order and dismissed the application for injunction on the ground that in Suit No, 1602/72, which had been filed by an owner of a plot adjoining Plot No, 307/2, Garden East, against the applicants, an injunction of the type similar to the one sought by the respondents had already been granted and hence there was no reason for granting another injunction in respect of the same plot. Against the said order, which contained certain observations adverse to the case of the respondents, the latter preferred an appeal to the District Court, which has passed the impugned order.
3. I have heard Mr. A. A. Fazeel, the learned counsel for the applicants, and Mr. Z. C. Valiani, who appeared for the respondents. The learned counsel submitted that the point in dispute in the instant case is of vital importance to the owners of plots in and residents of Garden East area, Karachi, inasmuch as due to the rapid increase in the population of Karachi and the nearness of the area to the main business and shopping centres, certain owners of plots are anxious to raise multistoreyed buildings on their plots while on the other hand other house holders are anxious to preserve their privacy and strongly object to raising of multistoreyed buildings in the area, the construction whereof, they maintain, is opposed to the terms and rules governing the grant of leases in that area.
4. Mr. A. A. Fazed submitted that there are two forms of leases under which plots are granted in Garden East, one being for built on plots and the other for plots for agricultural purposes. Although it is claimed that the lease of Plot No, 307/2 was in the form for built on plots, this makes no material difference for the purposes of determination of the revision application as the relevant conditions of tenure under both forms of lease, which have been described in the forms as Sanads, are identical. These conditions are :- "The terms of your tenure are such that your occupancy is both transferable and heritable, and will be continued by the British Government, without any objection or question as to title, to whosoever shall from time to time be its lawful holder, subject to the condition of the payment annually of the above land revenue according to the provisions of the Bombay Land Revenue Cade or of any other law for the time being in force, and to the liability to have the said rate of assessment revised at the expiration of a term of 20 years, reckoned from the 1st August 1923 and thereafter at successive periods of 20 years in perpetuity and to the necessity for compliance with the provisions of the law from time to time in force as to the time and manner of payment of the said assessment and to the following further conditions, namely:-
(I) No further sub-division shall be made without the sanction of the Collector of Karachi hereinafter referred to as the Collector.
(2) You shall submit to the Collector and obtain his sanction to plan and specification of the buildings to be erected before any building operations are commenced.
(3) The maximum area on which building may be erected shall be one-fourth of the entire plot.
(4) Where the boundary of a plot is a road, no building or portion of a building other than compound walls or entrance gates, shall be erected within fifteen feet of such boundary.
(5) For the purposes of condition (3) above, a verandah which projects beyond the plinth area of a building shall be included in the area occupied by buildings.
(6) The minimum area of a building plot shall be one thousand.
(7) If you will at any time fail to observe or fulfil any of the conditions of this grant above set out, you shall forfeit to Government all your rights under this grant, and your right and title to any buildings, materials, or crops or produce on the said piece of land at the time of such failure, and it shall thereupon be lawful for the Collector to enter upon and take possession of the said piece of land, with any such buildings, materials, crops or produce on the same, and the said piece of land with such buildings, materials, crops and produce shalt, from the time of such failure, vest in the Government of Bombay absolutely, free and discharged from all incumbrances of any kind whatsoever created on the said piece of land, buildings, materials, crops and produce by you."
5. On 7-3-1933, the Arbitrator appointed by Government under section 30 of the Bombay (Since re- named Sind) Town Planning Act, 1915, in respect of the Town Planning Scheme for Garden Quarter, Karachi, gave his award, according to which, in the Garden West and Garden East quarters, (1) no building other than dwelling houses with appurtenance thereto were to be erected, but the local Government was empowered to permit building of shops on reads not less than 50 feet wide; (2) no factories were to be erected in any part of this area; and (3) no chawls were to be allowed in the area, except in the area between Lawrence Road, Dipchand Ojha Road and Mungho Pir Road.
Presumably, in pursuance of this award, the Assistant Town Planner on 7-3.1933, issued Regulations controlling the development of Garden East and Garden West. In these regulations, which were to have effect in addition to the existing bye-laws issued by the local authority, it was specifically provided in accordance with the award of the Arbitrator under the Town Planning Act that no chawls would be permitted in the Garden Quarters except within the area specified in the award of the Arbitrator. Finally, reference may be made to a circular issued by the Collector of Karachi on 29th July 1938, presumably under Condition No, 2 of the Sanads in respect of plots in Garden, Lawrence and Tahilrani Quarters, requesting architects, while submitting building plans for his sanction relating to such plots, to observe the instructions specified in the circular. One of those conditions was that the height of the buildings in the Garden Quarters was not to exceed two storeys, including the ground floor.
6. Mr. A. A. Fazeel, the learned counsel for the applicants, has assailed the impugned order restraining the applicants from raising construction on their plot beyond ground and first floor on three grounds, namely :- "(1) That there is no legal restriction on the number of floors to be constructed on plots in Garden East ;
(ii) That the circular of the Collector, dated 29-7-1938, restricting the number of floors in Garden East to ground and first floor has no legal or binding force; and that is any case the said circular did not prevent the Collector from granting special permission, on consideration of the circumstances of any particular case, to construct more floors on a plot, as has been done in the instant case ; and
(iii) That the construction of a five storeyed building by the applicants on their plot will not interfere with the privacy or other easements of the plot of the respondents, which plot is separated from the plot of the applicants by hundred feet wide Britto Road."
7. In support of his first contention, Mr. A. A. Fazeel submitted that in neither of the two forms of Sanads there was the slightest restriction on the height of buildings or the number of floors to be constructed on plots in Garden East. He argued that the restrictions on the number of floors imposed by the circular of the Collector, not being in accord with the conditions of the Sanad, had no legal force.
8. In support of his second contention the learned counsel relied upon a passage in A. D. Smith's book, "Judicial Review of Administrative Actions", 1973 Edition, pp. 274 and 275, and the observations made in the cases of the University of the Punjab v. Mohsan Tirmizy and Mukhtar Ahmed v.
Government of West Pakistan . In the Lahore case, Kaikaus, J., observed as follows :- "The rules are to be framed by the Senate without the approval of the Government. The Senate can change the rules at any time it likes, there being no procedure provided and no statutory bar to such variation. The Senate, therefore, can always alter rule when making an appointment. It may alter the rule for that particular case and for no other. If it does not say that it alters the rules but actually does depart from that rule, there is an alteration for the purpose of that particular case. To put the matter simply, the Senate is not bound by its own rules and can with impugnity ignore them."
' In Mukhtar Ahmed's case, it was held by the Supreme Court that since clause (2) of Article 178 of the 1952 Constitution, which empowered the Governor of a Province to frame recruitment rules for the posts and services under his rule-making power, does not provide that the recruitment rules1 2 are to be made in any particular manner, an order-by the Government prescribing special method for appointment of 46 candidates to the posts of Assistant Agricultural Engineers was as operative as the Recruitment rules themselves.
9. It may be pointed out that another person, Mrs. Gul Banoo, whose' property was also separated from the applicant's plot, by a road, had also challenged the construction being raised by the applicants on the plot in question by means of a suit filed in the District Court being Suit No, 1602 of 1972, and had obtained a temporary injunction restraining the applicants from proceeding with the construction on their plot. The applicants preferred an appeal to the High Court, being Miscellaneous Appeal No, 95 of 1972, which was decided on 12-2-1973. In that appeal substantially the same arguments were advanced as in the present Revision Application. The appeal was heard by Dorab, J., who dismissed the appeal, and held as follows :- "(i) That the very fact that the circular of the Collector had been in force for over 30 years means that properties had been built, purchased and sold in Garden East on the basis of this circular
(ii) That the Sanad of the grantees of, Plot No, 307/2 does not confer the right to construct a five- storeyed building on the plot, and prima facie therefore the special sanction of the Collector permitting construction of such building is an alteration of the Sanad to the benefit of the appellants ;
(iii) That the condition in the Sanad requiring Collector's sanction for the "plan and specification of buildings" could only mean that the appellants would be allowed to raise a construction in accordance with the practice prevailing in the locality when the Sanad was issued ;
(iv) That the Circular was not only relevant as evidence of the condition prevailing in Garden East, but, in the circumstances of the case, would operate as estoppel against the appellants ;
(v) That the Collector could annex conditions to the grant only before permission to occupy the plot is given under section 60 of the Land Revenue Code ;
(vi) That the special sanction to the appellants having been given long after the original lessees had entered into occupation of the plot within the meaning of section 60 of the Land Revenue Code, therefore, it was given after the Collector had become junctus officio ; and
(vii) That the special sanction having been granted without hearing the persons who were bound to be affected by it, violates the golden thread of jurisprudence that no one shall be condemned unheard.'
10. The matter was taken to the Supreme Court which allowed the interim injunction to continue subject to the modification that pending disposal of the suit the applicants would be permitted to raise construction to the level of ground and first floor. The suit filed by Mrs. Gul Banoo having been disposed of, according to the learned counsel for the respondents by compromise, the interim injunction issued in that case has ceased to be operative.
11. In view of the decision of this Court in Miscellaneous Appeal No, 95 of 1972, with which decision I am not only in respectful agreement but it even otherwise binding on me, I find no merit in this revision applicatio and would accordingly dismissed the same with costs. I would, however, like to add that the present application has been considered only from the point whether the learned lower Courts had properly exercised their discretion in granting interim injunction and whether a prima facie case for such grant had been made out. The decision in the suit itself will of course depend on the evidence led in it and is not to be influenced by any observation made in this revision application or Miscellaneous Appeal No, 95 of 1972, except of course a decision on a point of law. PLD 1958 Lab. 943 PLD 1971 SC 8461 2