' SYED ZAWWAR HUSSAIN JAFFERY, J.---This High Court Appeal under section 15 of the Ordinance X of 1980 is directed against impugned order, dated 9-6-2006 passed by learned Single Judge of this Court, whereby application under Order XXXIX Rule 4 read with section 151, C.P.C. In Suit No,728 of 2004 was dismissed. The appellants have prayed that the impugned order may be set aside and the appellant may be allowed to raise- construction on Plot No, 151-A, Block-2. PECHS, Karachi as the plan was approved by respondent No,8.
2. Brief facts as narrated in Suit No,728 of 2004 are that Plot No,151-A Block-A, PECHS, Karachi.
Admeasuring 1000 sq.Yds; is situated in residential locality and the appellant is raising illegal multistorey commercial building thereon which is in violation of the Lease Conditions, land sale condition and land regulations. As per respondents Nos. 1 to 6 lease deed was executed by respondent No,9 on behalf of respondent No,10 which contains restrictive clauses and otherwise requires express permission (NOC) of respondent No,10 to change land use of plot leased out by respondent No,2. It is further stated in the plaint that the plaintiffs Nos. 1 to 5 are residents of PECHS since 25/50 years. The suit has been filed in public interest against defendants. It is further stated in the plaint that as per clause 7 of the lease condition change of land use cannot be done without express consent in writing from the Ministries of Housing and Works. The Plaintiffs/respondentssaw some construction activity on the site and it was discovered that respondent 5/defendant has succeeded in obtaining approved plan, dated 20-11-2000 from defendants Nos. 1 to 3 for basement + ground + five floors Apartments Complex under the name and style of "Datari Arcade". The approval accorded by defendants Nos. 1 to 3 to defendant No,5 is unlawful and in disregard of the provisions of the Regulation 2002 requirement of lease/land grant conditions applicable to the impugned plot. Theplaintiffs/respondents also noticed certain violations which have been committed by appellants (defendant) through official defendants.
3. It is further stated in the plaint that appellants/defendants have attempted to raise illegal construction on the impugned plot as some time ago in 1997 after obtaining approved plan for basement + ground 4 floors. Defendant No,5/appellant with collaboration of KBCA commenced construction. The KBCA on intervention of SHEHRI and on behalf of residents of the area forced KBCA to seal the premises on 30-3-1998 and consequently approved plan was cancelled. It is further stated that construction of multi-storeyed building on the impugned plot. The light and residential character of the neighbourhood would be completely destroyed and this would only result in violation of civil, statutory and Constitutional rights of the plaintiffs to life as enshrined under Articles 9, 14, 23, 24 and 25 of the Constitution. The impugned construction would violate the easementary rights and it would be a serious and perpetual nuisance for the plaintiffs/respondents on account of reduced access to light, ventilation, privacy, deteriorating electricity, water supply, overflow sewerage on the roads. Inadequate facility of garbage collection other law and order security and social problems. The plaintiffs/respondents addressed letters to CCOB and KBCA and other authorities against illegal construction on the said plot but no action was taken. On 21-10-2003 then on 22-12-2003 SHEHRI wrote letters to PECHS requesting for information of the project but no reply was given and it was objected to explain under what authority the information is being sought. The SHEHRI wrote letter to Ministry of Housing and Works and Federal Ombudsman requesting for information then it was informed that the said plot is residential plot and never commercialized. It is further stated in the suit that the land condition of Plot of 1000 sq. Yds. In PECHS shall be utilized as per Regulation 1979 Part-II Commercial area of 1/3
(i) 333 sq. Yds. 3000 sq.Yds (ii) ground + one floor (iii) COS of 15 from main road and 10 from other side (iv) no shops or godown will be allowed. Such permission was given by KBCA to the Builder for approval of basement plus G plus 5 such sanction on the residential plot is violative of the Regulation, 1980 Part-II. The builder has not left any COS on the both sides. The Regulation, 2002 defines COS as "space completely open to sky over which no structureor any part thereof building shall be erected. The impugned construction on the plot is violative of terms and conditions of lease and land grant, SBCO 1979 and Regulations 2002. The Defendants Nos. 1 to 4 have not exercised their lawful authority. The prayer in Suit No,728 of 2004 is reproduced as under:--
(i) A declaration that the ongoing construction by the defendant No,5 on the impugned plot shall cause private nuisance and shall affect/disturb the privacy and easementary rights of the plaintiffs;
(ii) A declaration that the ongoing construction shall affect/disturb the constitutional rights (Article 9,14,23 to 25) and/or vested rights of the Plaintiffs;
(iii) A declaration that conversion of land use and/or construction on the impugned plot from residential bungalow to multi-storeyed building commercial building effected in violation of applicable laws and/or the lease is illegal and is liable to be demolished.
(iv) A declaration that construction on the plot effected in violation of the law, the lease/land grant conditions and the Zoning Regulations and in contravention of the approved (albeit illegal) plan is illegal and liable to be demolished;
(v) A declaration that the Defendants are liable to be prosecuted in the Court of appropriated jurisdiction for public nuisance within the manning of section 268 of the Pakistan Penal Code;
(vi) A declaration that the Defendants Nos. 1 and 2 cannot approve any building plan without considering adequacy of available infrastructure and amenities, e.g., water, sewerage, gas, electricity, parking spaces, roads and other municipal services and civil amenities;
(vii) A permanent injunction directing the defendants Nos.1 to 4 cancel the unlawful conversion of land use, and the NOC for construction in excess of 1:0.66 plot ratio and coverage of the COS; (viii)A mandatory injunction directing the Defendant No,2 to demolish the construction so raised in excess of 1:0.66 plot ratio as the aforesaid construction has been effected in violation of the law;
(ix) A mandatory injunction directing the Ministry of Work. Defendant No,4, to forfeit/cancel the lease of the Plot for violation of the applicable laws and lease/land-grant conditions;
(x) A permanent injunction directing the defendants Nos.1 and 2 to institute multiple criminal prosecution proceeding against the builders, defendant No,5, the colluding government officials, and the licences architect and engineer, for fraud and causing public danger, and for contravening all the applicable laws, and
(xi) A permanent injunction restraining the defendant No,5 (builder/ owner), from raising any construction on the plot or parting with physical possession of the construction already raised or creating any third party interest therein;
(xii) A permanent injunction restraining the Defendant No, 2 (KBCA) from issuing any revised/regularization approved plan, "NOC for Sale" or "Occupancy Certificate" in respect of the building raised and occupied in violation of the Regulations and of the approved plan, (xiii)A permanent injunction restraining the defendants Nos. 2 and 4 and its District Registrar from registering any conveyance in respect of any part of the impugned plot/property.
(xiv)A permanent injunction restraining the utility companies from issuing any electric, gas, telephone or water supply connections in respect of the building on the plot, without a proper "Completion/Occupancy Certificate" from the Defendant No,2.
(xv) Any other and better relief deemed just and appropriate in the circumstances of the case;
(xvi) Cost of the suit.
4. Suit No,728 of 2004 was presented on 28-6-2004 and it was placed before the learned Single Judge on 30-6-2004. Notices were issued to the respondents and appellants and after hearing, the parties were directed to maintain status quo. Nazir was also appointed to act as Commissioner, to visit the site as to determine the status of alleged building regarding illegal construction after seeking assistance of a qualified Architect Engineer. In response to such direction he has submitted his report.
5. Learned counsel for the appellants has contended that the impugned order is liable to be set aside. The facts on record and relevant documents filed by the appellants have not been considered by the learned Single Judge. The plot in question was purchased by the appellant in auction held as per order of this Court wherein plot in question has been described as commercial plot. The title documents were already available with the official. Assignee. Besides NOC dated 19- 3-1987 was also issued by the competent Authority viz.Environmental Control (KMP & EC)
Department. The appellants are entitled to raise multiple commercial building after purchase by way of auction but the learned Single Judge misconstrued the relevant documents issued by the respondent No,10 for change of land use which in fact is express permission as embodied under terms and conditions of the Lease Deed executed between lessor and lessee and thus waiving of restrictive clauses. The resolution passed by the governing body of the KDA by which Allama Iqbal Road has been declared as commercial road since long but said resolution was not considered by the learned Single Judge. The Resolution was passed by the governing body carries force of law 'under the erstwhile KDA Order, 1957. Detailed order was passed by respondent No,8 before issuing NOC and respondent No,8 has conceded permission for grant of NOC on plots situated on Allama Iqbal Road and Khalid Bin Walid Road. It is further urged that learned Single Judge has not considered case of Syed Ali Asghar v. Creator Builders and others reported in 2001 SCM R 279.
Application of Article 14(4) of KDA Order 1957 has no application and it does not require any permission under the law. The plot in question was declared as commercial plot as per order of this Court. There is sufficient record to show that the plot in question is commercial plot as the same was purchased in the sum of Rs,4,25,00,000 keeping in view the status of land in the year, 1998 and in the year, 2003 plans were got revalidated. There is no fault of the appellant. There was no objection from the competent authority under the Sindh Building Control Ordinance, 1979. The appellant has .Suffered irreparable loss and it has affected their business which is against fundamental right guaratanted in the Constitution. The impugned order has been passed in violation of essential ingredients required for granting injunction. There is no violation of law on the part of appellant. The learned Single Judge granted the relief of injunction and refused to review the same under the order of a Division Bench of this Court on the pretext that NOC obtained from KMP Department was without inviting objections as required under KBCA and Town Planning Regulation, 1979 as applicable and contained in Part 4 of Schedule D of IBID Regulation. Appellants came in possession f the plot in question by way of auction in the year, 1998 and NOC relating to year, 1987 and the summary prepared by respondent No,8 was in favor of the appellant as provided under Article 29 of Qanoon-e-Shahadat Order, 1984. The competent Authority has allowed commercialization of numerous plots in the vicinity but same position was not considered by the learned Single Judge. It is further urged that learned. Single Judge while passing impugned order has referred. The Regulations 18.5 as contained in KBCA Town Planning Regulations 2002, which has no application in the present case. It is further urged that certain roads has been declared as commercial roads as far back by Resolution No,233 passed by KDA General Body on 20-5-1975, Allama Iqbal Road has been declared ascommercial road. Therefore, impugned order may be set aside. Learned counsel for the appellants in support of his contentions has relied upon the following cases:--
(1) Irfan and others v. KBCA and others (2005 CLC 694).
(2) Ardeshir Cowajee and others V. KBCA and others (PLD 2006 Kar. 63).
(3) Regulation 4A to 4E of 1979 Regulations.
6. Ms. Rizwana Ismail, learned counsel for respondents Nos. 1 to 6 has supported the impugned order and contended that there is no illegality or infirmity in the same. The plaintiffs/respondents have already placed several documents to show that the appellant cannot construct multi- storeyed building in the vicinity as foundation was laid on the said plot by A. Rahman Dadabhoy.
Samad Housing Development Corporation and construction was raised against the approved plan whereas Annexure-D/35 is transfer order passed in pursuance of Annexure-D 34 and mere description of the said plot as commercial plot in the said two letters does not mean that the plot has been converted automatically into commercial plot. It is contended that there is procedure for conversion of residential plot into commercial plot which can be done through the procedure prescribed by law and Rules. There was status quo order passed in this case on 30-6-2004 which was in force in October, 2004. No exercise could have been initiated either by MOW or by PECH Society. Two above letters were issued under Karachi Building Town Planning Regulations, 2002, which Ordinance prescribes procedure and the essential prerequisites for change of land use of residential plot. It is further argued that Regulation No,18-4.2.1 of Regulations 2002 prohibits such conversion without approval of Master Plan and Enviromnental Control Department (MP&ECD), whereas under Rule 18-4.2.2 the application for conversion was to be examined by the concerned authority, particularly by Ministry of Works. Govt. Of Pakistan in terms as required by Regulation 18- 4.2.3 which says to issue public notice regarding such change before taking final decision. It is further urged that in terms of Regulation 18-4-4.2.4 MP&ECD is required to examine objections from the public and final certificate for No Objection will be issued by the concerned Authority, Mrs. Rizwana Ismail, learned counsel has also pointed out that Regulation 18-5.1.1 provides that commercialization of the plot regarding conversion of residential plot into commercial shall be allowed as per policy formulated and revised from time to time by Master Plan and Environmental Control Department with the approval of Govt. Of Sindh. It is further contended that individual plots outside the policy will be considered for commercialization. It is pointed out that KBCA's letter, dated 19-3-1987was issued in violation of para. 4 of Schedule) as Karachi Building and Town Planning Regulation, 1979. This Regulation is couched in the same language as is regulation 18-4.2 of 2002 and was in force at the time of issuance of above mentioned letter. Therefore, this letter is of no consequence. It is further urged that the order, dated 9-6-2006 of the learned Single Judge dismissing C.M.A. 7776-05 in Suit No,728/04 is based on proper appreciation of facts and law. There is no illegality or infirmity in the same. The appeal preferred by the appellant may be dismissed and the learned Single Judge be directed to frame issues record evidence of parties expeditiously and decide the suit as early as possible. Ms. Rizwana Ismail in support of her contention has relied upon the following cases:--
(1) Allah Ditta v. Abdul Ghafoor (1992 MLD 1301).
(2) Messrs Excel Builders and others v. Ardisher Cowasjee (1999 SCM R 2089).
(3) Nazir Ahmed Panhwar v. Govt. Of Sindh (2005 SCM R 1814).
(4) Muhammad Saleem and others v. Administrator KBCA(KMC) and ors. (2000 SCM R 1748).
(5) IDBP Through Deputy Chief Manager v. Saadi Asmatullah and others. (1999 SCM R 2874).
(6) Haji Haroon Mandrah and ors. v. Abdul Rahim and others (2001 CLC 1312).
(7) Mehar Chand v. Milkhi Rain and others (AIR 1932 Lah.401).
(8) Mrs. Naz Shaukat Khan and ors. v. Mrs. Yasmin R. Minhas and others (1992 CLC 2540).
(9) Abdul Razak v. KBCA and others (PLD 1994 SC 512).
(10) Ardeshir Cowasjee and others. v. KBCA and others (1999 SCM R 2883).
' Mr. Manzoor Ahmed and Mr. Anwar Ali Shah, learned counsel for CDGK and KBCA respectively have argued that KBCA granted permission for construction of multi storey building as commercial in the year, 2003 and approval of plant in subject to provisions of law. The plot in question was initially auctioned by High Court as commercial plot and approval was within KDA Scheme. The building plan was approved by the competent Authority and Court cannot deprive the owner of the plot for raising multi storey building as NOC was issued as per Lease Deed. Letter, dated 3-3-1966 was annexed with copy of the Chalan of Rs,4,25,00,000 which gives right to use the same as commercial plot.
' We have heard learned counsel for the parties and considered the case law cited at the bar.
' The stand of the appellant is that certain multi-storeyed buildings have already been constructed in the area, therefore, the respondents/ plaintiffs have no right regarding the impugned construction. The approved plan was issued in violation of Regulations. Principle cannot be invoked in aid to perpetuate illegal action which may be detrimental to the interest of public at large as observed in the case of Ardisher Cowasjee and others. v. KBCA (1999 SCMR 883). The Plaintiffs/ Respondents have challenged the impugned construction and also sought enforcement of restrictive covenant of lease. As per comments filed on behalf of respondent No,10, it is specifically stated that the letter was received in the office of the Chief Controller on 4-2-1987 through Assistant Accounts Officer. Ministry of Housing and Works for commercialization of plot in the name of Mst. Nasreen Shugfta and others from Administrator PECHS. The Chief Engineer received NOC for commercialization of the plot from Master Plan and Environmental Control Department, Karachi Building Control Authority on 19-3-1987 along with approved commercial site-plan. However, the matter remained in abeyance in the said Department and Ministry of Works was approached for payment of commercialization charges of the said plot. Letter, dated 26-8-2004 was received from the Honorary Secretary, PECHS to expedite the case for mutation of the plot. Chief Engineer (South)
Pak P.W.D. Demanded amount to the tune of Rs,400,000 which was paid by M/s Datari International through its previous owner namely A. Rehman Dadabhoy on 9-10-2004. After receipt of amount to change status of the plot as commercial the same was mutated in the record of Ministry of Housing and Works. As per comments of respondent No,10 proper procedure as laid down under Regulation has not been observed but through respondent status of the plot was changed as commercial plot. We have observed that KBCA had granted approval building plan for construction of basement for car parking + ground with loft (shops) + 5 upper floors as per letter, dated 30-11-2003. It is obvious that the change to land use from residential bungalow to multi- storeyed building has been granted on the impugned plot without inviting public objections as required under 18-4.2 of Regulations, 2002 and without providing enhancement utilities and infrastructure for increase of population. It will be advantageous to reproduce letter, dated 19-3- 1987 issued by KBCA:-- "The Chief Engineer (South)
' Pa. P.W.D. Ministry of Housing & Works, Karachi.
' SUBJECT: COMMERCIALIZATION OF PLOT NO.151-A, BLOCK-2 PECHS, KARACHI.
' With reference to the above noted subject the competentauthority has been pleased to issue NO OBJECTION CERTIFICATE with the following conditions:--
(i) The owner is bound to pay the conversion charges to the concerned office/Dept. If any.
(ii) 7'-6" to be provided on Allama Iqbal Road and Khalid Bin Walid Road and 10'-0" compulsory open space as marked.
(iii) Only ground + two upper floors will be allowed.
(iv) Full covered area be allowed except compulsory open space of 10'0" feet as marked on the plan.
(v) No opening of shops is allowed on 20'-0" lane.
(vi) No opening is allowed towards plot No,151-Bexcept ventilators at the height of 6'-0" from the floor level to maintain the privacy of neighbours.
(vii) Car parking to be provided as per rule."
' The procedure prescribed as per Building and Town Planning Regulations 2002 sought after fulfilling essential prerequisites including publication of public notice for inviting objections from the general public no such permission can be granted. As no material has been brought on record to show that prescribed procedure was adopted, the letter issued by KBCA dated 19-3-1987 was also issued apparently in violation of para.4 of Schedule D of Regulation 1979 and is also violative of Zoning Regulation pertaining to PECHS area. It is also violative of Zoning restrictions as prescribed at Sr. No, 21 of Schedule D of Regulation 1979 which tend to enforce restrictive provision contained in the lease deed and allotment condition relating to PECHS. We are of the view that the purported NOC does not inspire confidence and the matter enquires thorough scrutiny and recording of evidence by learned Single Judge regarding conversion of residential plot into commercial plot and raising of high-rise building over the same. The impugned order cannot be set aside at this juncture as residents of area would be subjected to serious prejudice if appellants are allowed to raise multistorey commercial complex on the said plot. As regard commercial tag attached to the property, it may be observed that a buyer cannot get a better title than seller has, Official Assignee merely stepped into the shoes of the seller and offered the property as it was described in the purported document. Character of property would not change by description in title document, unless it is shown that character of the property from residential to commercial was affected in accordance with law. In fact, publication for auction was made on the basis of formal information without examining material regarding status of the plot. Themultistoreyed construction would violate rights and will become permanent source of nuisance as several complaints were made from the locality. On 20-11-2000 plan was approved. At that time Regulation, 1979 was operative which provided that the provisions of plot ratio do not contravene the provision of land grant condition of the plot and in such cases land grant condition shall prevail. As per land grant condition of 1000 sq.Yds. Plot required to construct 1/3 commercial area but ground one floor COS of 15' from main road and 10' from side and no shops or godown will be allowed. KBCA has given permission to the builder for B +G+5 whereas prima facie law provides that only G+1 structure could be built.
' We are of the view that no case for interference with impugned order has been made out. Many disputed questions of fact and law have been raised which cannot be decided at this interlocutory stage. Since matter is pending and all the parties are anxious to proceed on merit, we would therefore, direct that suit be, proceeded and decided expeditiously and preferably within 6 months.
' Before parting we may observe that observation contained herein are tentative in nature and will not prejudice right and defence of either of the party to the suit.
' With the above observations, this appeal stands disposed of.