1. ' S. ALI ASLAM JAFRI, J.---This appeal under section 3 of the Law Reforms Ordinance, 1972 is directed against an order, dated 30-10-2003 of a learned Single Judge of this Court rejecting the application filed in Suit No.1127/2002 on behalf of the appellants/plaintiffs for grant of interim injunction restraining the respondent/ defendant No.1 from raising any construction over the plot in suit, pending the decision of the suit.
2. ' The facts in brief are that appellants/plaintiffs filed Suit No.1127 of 2002 for declaration and injunction challenging the grant/lease in favour of respondent No.1, after conversion of road and octroi post for use as residential building and construction of a residential building on. Plot No.1 RY/3 Railway Quarters, Stock Exchange-Road, Karachi, formerly known as Kalyanjee Road (hereinafter referred as "the subject plot"), inter alia on the plea of causing nuisance and that the subject plot is a part of road and/or octroi post which was exclusively reserved for public in general and that of the users of the area viz. The appellants in particular, as the said property could not be converted from public/amenity use into residential usage, in violation of applicable building laws/regulations and/or the rules of natural justice.
3. ' Since the respondent No.1 had initiated construction activity over the subject plot hence an application under Order XXXIX, rules 1 and 2, C.P.C. Duly supported by an affidavit praying for grant of interim injunction restraining the respondent/defendant No.1 from raising any construction thereon pending the suit was also filed.
4. ' Counter-affidavit was filed by respondent No.1 stating therein that no case for grant of injunction was made out in view of his right to raise construction after the grant of the subject plot in his favour. The respondent No.1 in support of his title stated that he had procured the occupation rights in respect of the subject plot from its recognized occupant namely Qazi Anwarul Haq Islam against substantial consideration. The area measuring 329 Sq. Yards has been granted to him for residential purposes by the then Mayor of Karachi Municipal Corporation on 29-12-199i. He had also prayed for regularization and grant of 99 years lease, which was granted in his favour and he is in possession since 21st October, 1989. He further stated that the subject plot was granted to him after inviting objections from the public and such notices were published in daily `Dawn', daily `fang'. `The News' daily and daily `Nawa-e-Wqat' Karachi. It was granted to him after obtaining no objection from various local bodies and agencies. He asserted his right to use and enjoy the said property/ subject plot and stated to have developed the same. He denied that the subject plot was ever offered to any body for office use. Respondent No.1 further stated that the construction was being raised strictly in accordance with approved building plan on the subject plot which stands granted to him on 99 years lease by the then K.M.C.
5. ' Rejoinder was field on behalf of the appellants/plaintiffs reiterating the facts as stated in the memo. Of appeal and the affidavit filed in support of the application for grant of injunction.
6. ' Learned Single Judge after hearing the learned counsel for the parties at length and examining the material placed on record came to the conclusion that mere existence of prima facie case, balance of convenience and irreparable loss are not the only ingredients to be taken into consideration while refusing or granting the injunction but a plaintiff has to demonstrate good faith and promptitude as well in filing the suit and since the plaintiff has filed the suit with sufficient delay, which amounts to laches hence equitable relief could not be granted under the circumstances. Learned Single Judge further observed that in view of the material available on the record and the nature of the objections raised, the plaintiff is lacking good faith. Injunction was, therefore, refused and the defendant/respondent No.1 was allowed to raise construction at his own risk and costs. Statement of Mr. Mushtaq A. Memon learned counsel for respondent/defendant No.1 that defendant No.1 will strictly abide by the terms of the lease and the approved plan, and any violation, breach or deviation therefrom may entail the consequences as may be available under the law and the authorities concerned may be at liberty to take action, if any was also taken on record. Respondent/defendant No.1 has also been restrained from creating any third party interest of any nature in the subject plot till the final decision of the suit. Expeditious disposal of the suit was also ordered.
7. ' Ms. Rizwana Ismail learned counsel for the appellant has mainly contended that admittedly the subject plot consists of a dead end/portion of a public road and an abandoned octroi post of the then K.M.C., and both portions being meant for public use, it is an amenity plot, as such the very lease in favour of the respondent/defendant No.1 is illegal and void ab initio as no amenity plot could be converted and granted/leased out to any person for any other purpose. Furthermore, no lease could be granted in respect of the immovable property without open auction and both these conditions according to the learned counsel are lacking in this case. Learned counsel further urged that the plot in suit was granted/leased out to the respondent/defendant No.1 in a spurious and surreptitious manner without taking into consideration the objections filed by the plaintiffs in response to the notice published in various newspapers. In support of her contention that a plot or a portion thereof coming under road alignment or affected by street or land reserved for the amenity purposes could not be leased out, learned counsel has placed reliance on rule 13(6) of the Sindh People Local Council Land Rules 1975, which reads as follows:-- "(6) No plot or portion thereof coming, under road alignment or affected by street or land reserved for the amenity purposes shall be leased out and, if, any such plot is under unauthorized occupation the Council shall cause it to be vacated without payment of any compensation whatsoever."
8. ' To substantiate her contention that even otherwise no land/plot could be disposed of except through public auction, learned counsel has referred to rule 7 of the West Pakistan Municipal Committee (Contracts) Rules, 1960, which says that public notice inviting tenders is necessary.
9. Learned counsel has also placed reliance on section 45(4) of the Sindh Local Government Ordinance, 1979, to show that all contracts for transfer by grant, sale, mortgage, lease or otherwise of immovable property or any interest and right thereto or disposal or sale of movable property shall, subject to the rules be entered into after inviting offers in open auction. Learned counsel also argued that the area of the subject plot being more than 40 (forty) sq. Yards and it not being a case falling under Clause (ii) to subsection (5) of section 45, could not be granted/disposed of except through public auction. The said provision of law is reproduced hereinafter:-- "(5) Notwithstanding anything contained in subsection (4), a council may grant, sell, or lease out land at rates to be fixed in consultation with Government, to-- (i)
(ii) land holders for adding to their holdings, alignment or small plots of not more than forty square yards at the market price likely to be obtained in auction; (iii)
10. ' Learned counsel also referred to a judgment in C.P. No.D-460/1997 by a Division Bench of this Court wherein while relying upon the case of Munir Ahmed v. Province of Sindh (2000 CLC 1056), it was held that Local Councils do not possess any plenary power to deal with public property in the manner they like, ignoring laws, regulating their authority, and as such allotment of a plot measuring 1160 Sq. Feet at New Wholesale Fruit and Vegetable Market, Shikarpur Road, Sukkur allotted to one Babo Muhammad Karim Mangal by Administrator Municipal Corporation, Sukkur, was therefore, declared to be without lawful authority being in violation of the statutory provisions of law viz. Section 45(4) of SLGO 1979. In support of her contention learned counsel has referred to various provisions of law particularly the relevant rules on the point that a plot meant for amenity purpose could not be utilized for any other purpose more particularly for residential or commercial use. She has also vehemently urged that a piece of land forming part of road cannot be sold/leased out for a private use to anybody. In support of her contentions she has placed reliance on the Karachi Building and Town Planning Regulations, 2002, "Amenity Plot" has been defined in the said regulations. Learned counsel has particularly referred to Regulation 18-4.1 as well as Regulation 18-4.2, which are reproduced hereinafter:-- "18-4.1. Change of Land use: ' Change of land use of amenity: No amenity plot reserved for the specific purpose shall be converted or utilized for any other purpose.
11. 18-4.2. Change of land use of residential plots: 18-4.2. No residential plot shall be converted into any other use except with the approval of MP&ECD after the recommendations of the Concerned Authority."
12. ' To substantiate her contentions further, learned counsel for the appellants has referred to the following authorities which were also cited before the learned Single Judge, but the same were found to be distinguishable:--(1) Muhammad Yaqoob v. Mohsin (2000 CLC Karachi 1546), which was a case of pre-emption; (2) Abdul Waheed Butt v. Mrs. Asma and 4 others (1989 CLC Karachi 1936), where injunction was granted in a suit filed by the neighbour against unauthorized construction in violation of the approved plan; (3) Major (Rtd.) Shaikh A. Naeem v. Lt.-Col. Asif Burhan Malik and 2 others (1989 CLC Karachi 2178) where injunction was granted in a suit for specific performance; (4) Abdur Rasheed v. Assistant Director (PLD 2002 Peshawar 99) where injunction was granted when construction was being raised against National Highways and Strategic Roads (Control) Rules, 1998; (5) Ali Hussain and others v. Water and Sanitation Agency Lahore and others (1992 MLD Lahore 1348), where the injunction was granted when authority was executing a scheme without complying with the land acquisition proceedings; (6) Balagamwala Oil Mills (Pvt.) Ltd. v. Shakarchi Trading A.G. And 2 others (PLD 1990 Karachi 1), where injunction was granted to foster the cause of justice in a fit case even if case did not fall within the four corners of the well-settled principles under Order XXXIX, rules 1 and 2, C.P.C. Learned counsel has therefore vehemently urged that it is a fit case for grant of injunction as prayed, and the construction if allowed to be raised even at cost and risk of the respondent/ defendant No.1, shall create further complication and shall amount to perpetuate an illegal, unlawful and void act of the concerned functionaries of the Government.
13. ' On the other hand, Mr. Mushtaq A. Memon learned counsel for the respondent/defendant No.1 has argued that under section 45(4) of SLGO, 1979, a local council is competent to dispose of land without auction provided with the approval of the Government, and admittedly approval of the Government was obtained in this case before granting the plot in question to the respondent/defendant No.1 hence the contention of learned counsel for the appellants is without any substance. Learned counsel has further argued that in fact the appellants were interested in getting this plot transferred to them and having failed in their mission have filed this suit with mala fide intention and have not come to the Court with lean hands, and on that score as well, they are not entitled for the relief prayed. Learned counsel in support of his contention has referred to the case of Hajiani Badrunnissa v. Abdul Aziz (1989 MLD 4101), where construction of a five storey building was not stayed but relief to the extent that defendant was restrained for putting up any construction beyond two storey in Block-A and construction of Block-B which is adjacent to Block-A was allowed to be raised in terms of a consent order passed by Member (Technical K.D.A.), Director Master Plan and Control Department K . D . A .
14. ' We have considered the arguments advanced by the learned counsel for the parties and perused carefully the impugned order, the material placed on record as well as the law cited at the bar.
15. Admittedly the plot in suit consists of a portion of the dead-end of a road and an abandoned Octroi Post which was granted/leased out to respondent/defendant No.1 through a resolution of the then Karachi Municipal Corporation approved by its Mayor at the relevant time as well as the Provincial Government purportedly under section 45(4) of the Sindh Local Government Ordinance, 1979, but in violation of the provisions of Clause (ii) to subsection (5) of section 45 of the Ordinance.
16. Though objections for conversion of the land were also invited through public notice which appeared in a number of daily newspapers published from Karachi and objections were not filed by any one including the appellants within due date. However, the fact remains that apparently the grant after conversion, and its approval have been made without taking into consideration of the relevant rules and regulations as cited by the learned counsel for the appellants under which an amenity plot cannot be converted into a residential or commercial plot, and a plot measuring more than 40 (forty) sq. Yards could not be granted except through public auction.
17. ' Indeed, the appellants/plaintiffs appear to be interested in getting the subject plot/piece of land allotted to them and they failed to get the same transferred in their favour but it does not mean that they are estopped from challenging its .Grant in favour of respondent/defendant No.1 to be illegal and void being in violation of the relevant laws dealing with the use and conversion of amenity plots. Under the circumstances factum of laches on the part of appellants, if any, can be examined at the time of final disposal of the suit.
18. In view of the discussion made above, which is tentative, in nature, there appears to be a prima facie case as well as balance of convenience in favour of the appellants/plaintiffs for grant of interim injunction as prayed. Under the circumstances, we would allow this appeal, set aside the impugned order and grant the injunction as prayed till the disposal of the suit, however, the parties shall bear their own costs.