' AMIR HANI MUSLIM, J . --- Through this Injunction Application the Plaintiff seeks restraining order against the defendants for implementing or executing or enforcing the impugned public notices issued in Daily `fang' of 23-10-2006 and Daily 'Dawn' of 24-10-2006 with further prayer to restrain the defendants from taking any penal or adverse action against the plaintiff till the pendency of the suit.
2. This case has a chequered history, therefore, on the last date of hearing I directed the counsel for the defendants to procure the attendance of the Cantonment Executive Officer, Clifton, who has published the impugned public notices along with the entire record of the project. Today, the Cantonment Executive Officer, Clifton, is present in Court along with the record.
3. The record reveals that the project by the name of `Aashiana' was constructed by the Plaintiff.
This project falls within the municipal limits of Cantonment Board, Clifton and therefore, in law, the construction was to be monitored by the Cantonment Board under the provisions of the Cantonments Act, 1924 (hereinafter to be referred to as `the Act of 1924) and the bye-laws framed thereunder.
4. The record further reveals that the plaintiff had initially applied for approval of the construction of the project for ground + mezzanine + car parking + seven floors and pent house with the Karachi Building Control Authority on 21-6-1990. Thereafter the concept plan was revalidated by the defendant No,1 on 25-10-1995. After submission of scrutiny fee the plaintiff had applied for 11 storeys and the said revised plan was approved by the defendant No, 1 vide its letter, dated 26-9-1996. The approval was issued by the Cantonment Executive Officer, Clifton Cantonment, wherein he has stated that the board has confirmed the building committee has accorded approval of the building plan for 11 storeys. Additionally on 3-11-1997, Cantonment Executive Officer, Clifton, had also accorded permission to the plaintiff to execute sublease to lessee/sublessee/allottees of the project. It also authorized the plaintiff to hand over physical possession of the flats/shops constructed by the plaintiff in the project.
5. Again, somewhere in 1999, the plaintiff had approached the Cantonment Board, Clifton, for regularization of the deviations in the approved plan. The Cantonment Executive Officer, Clifton, processed the application through building committee and vide letter, dated A 2-12-1999, directed the Plaintiff to deposit a sum of Rs,43,69,628 towards the composition fee for the deviations/unauthorized construction and on deposit of such fee, their case would be placed before the building committee of the Cantonment Board, Clifton, for completion offormalities.
Pursuant to this letter, the plaintiff claims that the requisite amount of composition fee was deposited by them, which fact is not disputed by the Cantonment Executive Officer, Clifton, present in Court.
6. The record further reveals that after the payment of composition fee as aforesaid, the Cantonment Board has nominated Lt. Col. (R) Amanatullah Khan, a member of Monitoring Team, to inspect the site and give his report as to whether the regularization plan submitted by the plaintiff be recommended or not. Lt. Col. (R) Amanatullah Khan, had A inspected the site on 8-5-2000 and had recommended that the deviations/unauthorized construction may be considered by the Board for compounding/regularization of the revised building plan and allow plaintiff further constructional activity for completing the project. It was however, observed in the report that one year's time from the date of approval of the revised plan by the Board be given to the plaintiff.
Upon receipt of this report, on 23-5-2000, the Cantonment Board approved that the deviation/unauthorized construction subject to concurrence of the competent authority in terms of section 185 of the Act of 1924, and compounded the unauthorized construction.
7. After these recommendations from the Board, the learned counsel for the plaintiff states that they continued raising construction and no objection of any nature was ever raised by the Departments except for the first time when on 17-10-2006 without notice to the plaintiff, officers and staff of the defendant No,1 came to the site and had taken away the tiles lying inside the project and removed the construction material and whereafter the defendant No,I published the impugned public notices.
8. The learned counsel for the plaintiff states that the entire action of the Defendant No,1 was against the norms of principles of natural justice as no prior notice was given to the plaintiff. He further submits that even otherwise the provisions of section 185 or section 256 of the Act of 1924 do not authorize any of the officer of the defendant No,1 to remove material inside the project and/or to issue impugned public notices through which they could recommend the cancellation of the lease of the plaintiff or direct the Registrar or Sub-Registrar to refrain from registering any sub- lease in respect of the plaintiff's project.
9. A counter-affidavit was filed by the defendants in which the defendants have taken the position that pursuant to the direction contained in the resolution of the Cantonment Board passed on 20- 10-2006, the action was taken against the plaintiff as the plaintiff was raising illegal construction and the Cantonment Board in exercise of powers under section 256 of the Act, 1924 has removed the material after issuance of the notice to the plaintiff. The Cantonment ExecutiveOfficer, present in Court, submits that the impugned public notices were issued under the directives of the Cantonment Board. The Cantonment Executive Officer, however, has not disputed any of the documents filed by the plaintiff along with the plaint and conceded that the regularization plan of the plaintiff was recommended in the year 2000 for concurrence of the Competent Authority.
However, after such recommendation the plaintiff was never notified any further direction. The Cantonment Executive Officer further submits that on 7-9-2000 the regularization plan was returned to him with certain observations by the Competent Authority. I have perused the letter of the Competent Authority. There is nothing in the letter which could suggest that the plaintiff was ever informed of the queries made in the letter. In fact, the Cantonment Board has accepted the concept plan way back in the year 1990-1991, which plan was approved by the KBCA. The other queries made through this letter by the Competent Authority had no nexus as far as the present dispute is concerned. What is more intrusting is that this letter of the Competent Authority was not even responded to by the Cantonment Board for which the Cantonment Executive Officer could not give any plausible reason. The Cantonment Executive officer further concedes that the builder/plaintiff was not put to notice about the queries made in this letter.
10. In any event, till the year, 2006 the correspondences exchanged between the Competent Authority, Cantonment Board, Cantonment Executive Officer and the Director (land), KDA were never communicated to the plaintiff except one letter which was addressed by the Cantonment Executive Officer to the Builder seeking their viewpoint and another letter copy of which was endorsed to the plaintiff which has no bearing on the present proceedings.
11. Somewhere in the year 2006 the Cantonment Board, Clifton, on the ground that the project has not been completed within one year as stipulated in the regularization plan had initiated the purported actions. The Cantonment Executive Officer states that one year time was fixed for completion of the project and on lapse of the said time any subsequent construction of the project would be illegal and submits that the actions of the defendant No,1 were justified. On the other hand, Mr. Rasheed A. Razvi, learned counsel for the plaintiff, states that due to non-supply of electricity by the KESC, the plaintiff could not complete the project in time though the entire structure has been completed and finishing working is in the final stages and shops on the ground floors have been leased out and occupied. In this regard, the learned counsel has submitted that plaintiff has filed a Suit No,929 of 2001 against the Karachi Electric Supply Corporation and Zonal Controller Billing, which suit has been disposed in June, 2006 by this Court. He further submits that at no point of time the explanation for delay in completing theproject was ever sought either by the defendant No,1 or by the defendant No,2. According to him, the delay, if any, caused in the completion of the project and any construction beyond the stipulated time cannot be termed as illegal construction and the action, if any, required under the law falls within the provisions of Chapter XI of the Act of 1924. In support of his contention he has relied upon the Judgment of the Honourable Supreme Court in the case of State Life Insurance Corporation v. D.G. Military Lands and Cantonments, reported in 2005 SCM R 177.
12. Mr. Suhail H.K. Rana, learned counsel for the defendant No,1 on the other hand a state that there is violation of section 183-A and, therefore, the construction by the plaintiff was unauthorized. He further submits that the concurrence of the Competent Authority was not available and, therefore, this unauthorized construction was liable to 6e stopped.
13. I have heard the learned counsel for the parties and the Cantonment Executive Officer and have gone through the record. The stand which the defendant No,1 has taken in counter-affidavit is contrary to the stand which the Cantonment Board has taken in the resolution which is impugned in these proceedings. In the Board Resolution of 2006 on the basis of which the Cantonment Executive Officer has taken action, the Board has made following recommendations against the Plaintiff:-- "RECOMMENDATIONS
(1) Construction at site to be stopped forthwith.
(2) Sub-leasing of flats/shops be stopped forthwith. NOC granted by CBC for sub-leasing be cancelled.
(3) The DCO and Registrar be directed not to register any sub-lease without CBC's NOC.
Parking in Basement to be made operational and parking space converted into shops be demolished.
(5) Encroachments on road be removed immediately.
(6) CDGK be asked to cancel the lease/allotment order as it involves gross violation of lease/allotment and CBC's bye-laws.
(7) Municipal sanctions granted vide C.B.R. No,30, dated 23-5-2000 be withdrawn as neither NOC from CDGK has been received nor concurrence of the competent authority has been obtained.
(8) Public notice be published in the Press for information of general public.
' According to the Cantonment Board Resolution, the construction on 5th, 6th and 7th floors was illegal, the encroachment on Government land byerecting lift/conveyor on road, installation of generator on service road and dumped construction material on the road.
14. According to Mr. Rasheed A. Razvi, learned counsel for the Plaintiff, in view of the judgment of the Honourable Supreme Court in the case of State Life Corporation supra construction beyond the stipulated time would not make it illegal if a party has plausible explanation. He submits that at no point of time the plaintiff was put to notice to explain as to why they have failed to complete the construction within the stipulated time. The record also does not show that at any point of time after 2000 the plaintiff was ever asked to explain his B position in regard to delay in completing the project. Therefore, ex facie, I am of the view that the Cantonment Board as well as the Cantonment Executive Officer were in error in holding that the construction raised after the period of new year of the regularization plan was illegal, more particularly, when identical issue was thrashed out by the Honourable Supreme Court in the Judgment referred to hereinabove. Even otherwise, there is no specific letter on record, which could suggest the date when the plaintiff was informed that the project be completed within one year.
15. The alleged offence of encroachment on government land by creating lift/conveyor on road, installation of generator on service road, the Cantonment Executive Officer has stated that they have removed the encroachment, therefore, this offence, if any, was compounded. The third offence was of dumped construction martial on road, which has also been removed according to the Cantonment Executive Officer.
16. It is normally expected that the public functionaries before taking any adverse action against a party should issue notice to such party. In the present case, evidently no notice of any nature was ever issued before the action on 17-10-2006 when the Cantonment Board and their staff came to the project and removed the construction material and even the material lying inside the project.
This fact has not been disputed by the Cantonment Executive Officer present in Court who states that tiles lying inside the project were also removed by them.
17. Provisions of section 185 read with section 256 of the Act of 1924, do not authorize the Cantonment Board or the Cantonment Executive Officer to remove the material from the site in the given circumstances and in the manner as was done. The entire act of the Cantonment Board and Cantonment Executive Officer was without sanction of law and was unwarranted. I, therefore, direct the defendants to restore the material which they have removed from the project of the plaintiff forthwith and in case the plaintiff has violated any provisions of the Act of 1924, the defendants would be at liberty to take action after notice.
18. As far as the regularization plan is concerned, the recommendations made by the Board in its resolution against the Plaintiff on 20-10-2006 are violative of the language of the provisions of section 185 or other provisions in Chapter XI of the Act, 1924. The Cantonment Board has no authority to stop construction of a project, on account of delay by holding such construction as illegal. However, the Cantonment Board can issue a notice and provide an opportunity of hearing to the D Plaintiff whereafter they can impose penalty or to take any other action as provided under the provisions of sections 183 and 185 keeping in view the guidelines given by the Honourable Supreme Court in the case of State Life Corporation, referred to hereinabove. The Cantonment Board can also not issue any direction either to the DCO or to the Registrar or to the Sub-Registrar for canceling the NOC or determining the lease or restraining them from registering the documents/sub-leases.
19. As far as construction in the basement is concerned, Mr. Rasheed A. Razvi states that initially there was an office of the project and that office has been removed and now the entire parking area has been cleared. However, the Cantonment Board would be at liberty to inspect that parking area and if it is not clear such encroachment would be removed by the plaintiff at their cost. The recommendations in 2006 by the Board are also violative of provisions of section 185, which provides either demolition or compounding of the offence. It is unfortunate that after accepting the composition fee the Board has taken actions without providing any hearing to the plaintiff or to explain their E view point. If there is any violation in the regularization plan the Cantonment Board would be at liberty to take action against the plaintiff after giving them notice. The regularization plan submitted in the year, 2000 still holds field as the competent authority has not disapproved it.
20. The question of stability certificate raised in these proceedings in regard to the structure does not find mention in the resolution nor can it be considered at this stage. If the Cantonment Board feels that the law F requires that a stability certificate of structure of the project is neeaed the plaintiff may be put to notice to supply the same and action be taken in accordance with law after hearing them,
21. For the aforesaid reasons, I suspend the impugned public notices and the recommendations of the Cantonment Board of the year 2006. The defendant would be at liberty to take any action against the plaintiff if there is any deviation or violation in the regularization plan, which action shall be within the four corners of the law. The application stands disposed of in above terms.