1. ' MUSHIR ALAM, J.--- Through this common .Order, I intend to dispose of applications under Order XXXIX, rules 1 and 2 read with section 151, C.P.C. Filed by the various plaintiffs in the above-referred pits of which numbers are given below:--
(1) C.M.A. Nos.6200 of 2003 and 6201 of 2003 filed in Suit No,1188 of 2003;
(2) C.M.A. No,6207 of 2003 filed in Suit No,1190 of 2003; (3). C.M.As. Nos.6242 of 2003 and 6243 of 2003 filed in Suit No,1193 of 2003;
(4) C.M.A. No,6245 of 2003 filed in Suit No,1195 of 2003;
(5) C.M.A. No 6256 of 2003 filed in Suit No,1198 of 2003 and
(6) C.M.A. No,6274 of 2003 filed in Suit No,1203 of 2003.
2. ' Facts and grounds on which referred applications founded, are common. From the pleadings, it appears that the plaintiffs acquired shops in a Project of defendant No,2 known as "Trade Tower" constructed on Plot bearing No,3-CL-5, situated at Abdullah Haroon Road, Karachi through registered sub-lease executed on various dates spread over years i,e, 1992 and 2003. Case set up by the plaintiff appears to be that, the shops were constructed in accordance with the approved plan, possession was delivered and sub-leases were executed in favour of the respective allottees.
3. Defendant No,1, after service of three days notice dated 20-10-2003 and 27-10-2003 sealed the shops on the ground, inter alia, that the basement has been converted into shops in violation of the approved building plan, Rules and Regulations. Plaintiffs have impugned the action initiated by the defendant No,1, K.B.C.A. In above suit. Through above-referred applications under Order XXXIX, rules 1 and 2, C.P.C., ad interim restraining orders were sought against the defendant No,1 from sealing the shops and/or otherwise interfering with their use and enjoyment till disposal of the suits.
4. ' In Suit No,1188 of 2003, the Court after recording the rival contention of the parties directed "in order to examine these facts, the approval of the original plan and subsequent revision in approved plan are necessary. The defendant No,1, K.B.C.A. Is maintaining the record of the Building, and is directed through counsel to produce the approval of original plan and any subsequent revision". On the following date i,e, 13-4-2004, it was further directed that "in order to ascertain the factual position, Nazir is appointed as Commissioner to inspect and note the construction if at all being made by the land marks builders and developers in the basement of the building. In case, any construction or activity is going on Nazir to notify the builder or any other person incharge of the construction to restrain from raising any construction thereon. Said landmark builders and developers is also restrained not to create any third party interest in the property". Pursuant to the directions of this Court dated 16-2-2004, K.B.C.A. Filed photo copy of the approved building plan dated 9-5-1987. It appears that originally, building plan was approved for, basement (for car parking) + Ground + 1st to 6th floors, there was no provision for shops in the basement. It however, appears that shops have been constructed in the basement instead of providing the car parking. Though, it appears that subsequently, in a revised plan a provision for car lift was approved for upper floor. It is not disputed that that offices were constructed on 2nd to 9th floors and leased out, but on none of the floor car parking facility. Has been provided.
5. ' It was contended by Messrs Shehenshah Hussain and Rana Azim, learned counsel for the plaintiffs that the builder i,e, defendant No,2 had given an undertaking to provide car parking facility on the basis of such undertaking, subject shops were desealed. It is, therefore, contended that the plaintiffs are not at fault. According to the learned counsel, entire project was completed and K.B.C.A. Did not take any action, which sufficiently shows that, the building was constructed in accordance with the approved building plan. According to learned counsel, after execution of lease and transfer in favour of the plaintiffs vested right has been created, which cannot be taken away by K.B.C.A. It was further urged that section 6(2) of the Sindh Buildings Control Ordinance, 1979; is merely directory as no consequences are provided. Plaintiffs cannot be made to suffer for the violation, if any and, for the fault of the defendant No,2 and any inaction on the part of the defendant No, 1.
6. ' Mr. Shahid Jamiluddin, learned counsel appearing for K.B.C.A. Contended that, the building could only be constructed in accordance with the approved plan, since plan was not approved for the shops in the basement. He further urged that, it was incumbent on the prospective purchaser under section 6(2) of the Ordinance, 1979 to obtain "occupancy certificate" before occupying any shop, office or flat in order to confirm the title of the builder of their rights through sub-lease. As regard the undertaking by the builder and de-sealing of the subject shops by the authorities concerned, it was stated that the undertaking of the builder was conditional that within three (3) months the parking facility would be provided, whereafter the matter was up to K.B.C.A. For taking action in accordance with law; therefore, K.B.C.A. Is within its right to take action. Learned counsel for K.B.C.A. States that even provision kept for car lift, as undertook by the builder, has alsO been converted into shops/offices now there is no possibility of providing car parking. There is no denial of the above facts on the part of neither the plaintiffs nor the defendant No,2. As regard rights of the plaintiffs if any, same were denied on the strength of dicta laid down by the apex Court in Muhammad Saleem and 5 others v. Administrator, Karachi Metropolitan Corporation, K.B.C.A.
7. (K.M.C.), Karachi and 2 others 2000 SCM R 1748. In said case it was held that, without obtaining occupancy certificate from the Building Control Authority buyer could not claim to have acquired a prefect and marketable title to the premises.
8. ' Having heard the arguments of learned counsel for the parties, perused the material brought on record and carefully scanned the provisions of law cited at bar.
9. ' In order to appreciate rival contentions of learned counsel for the parties, it would be beneficial to reproduce sections 6 and 7-A of the Sindh Buildings Control Ordinance, 1979; which runs as follows:-- "Section 6. Approval of plan.--- (1) No building shall be constructed before the Authority has, in the prescribed manner, approved the plan of such building and granted no objection certificate for the construction thereof on payment of such fee as may be prescribed: ' Provided that in the case of a building the construction whereof has commenced before coming into force of the Ordinance, the Authority's approval of the plan and no objection certificate shall be obtained not later than six months after the enforcement of the Ordinance.
10. ' Explanation.--- The word "construct" with all its variations used in this section and hereafter shall include "reconstruct" with all its variations and. Additions or alterations.
(2) No building mentioned in subsection(1) shall be occupied by any person or shall be allowed by the builder to be occupied, before the authority has, on application of the occupant or owner, issued occupancy certificate, in such manner as may be prescribed.
(3) No building mentioned in subsection(1) shall, except with the permission of the Authority, be used for the purpose other than that for which its plans were approved.
(4) Where the Authority is satisfied that the purpose for which the building is desired to be used is consistent with the approved plans of the building, it may grant the permission under subsection
(3) on such conditions and on payment of such fees as it may fix.
(5) At any time ...................................................................
(6) Where any order ........................................
11. Section 7-A. Violation of certain provisions.--- Where the provisions of subsection (1) of section 6 are violated the building may without prejudice to any other action including sealing of the building or ejectment of the occupants be ordered by the Authority or any officer of the authority authorized in this behalf to be demolished, at the cost of the builder in the case of public buildings and the owner in other cases."
12. Contention of learned counsel for the plaintiff that, provisions of subsection (2) of section 6 are merely directory and not mandatory, cannot be sustained for more than one reasons.
13. 'In order to determine whether a particular provision in a statute A is mandatory or directory various tests are employed. Each statute has its own complexion, which can be determined by examining the intent, purpose and the object for which it is enacted, the mischief it intends to suppress. Where a statutory provision is couched in a negative tone it is generally construed to be mandatory. An enactment may create or recognize a right, impose an obligation, cast a duty provide a mechanism, manner and or consequences to claim, observe, perform the same. Though not always but at time language employed may also assist so as to determine the nature of an enactment or provision in a statute.
14. ' In subsections (1) to (3) word "Shall" has been used to stress upon the obligations on the part of the builder and occupier of the building to act in a particular manner before undertaking construction and occupying the building.
15. ' Use of "may" and "shall" in a statute has often been debated in Courts, to cull real intent of the law- maker, both the terms, at times, are used interchangeably. Where "may" is used in a provision, it is generally taken to be an expression of permissive tone and enwrap certain degree of discretion as against "shall" which expression is generally used where some persuasive force is intended, it carries some degree of imperative character. Another litmus test is the provision of consequences in case of breach thereof. In case consequences are provided, provision is generally construed to be mandatory otherwise conceived as directory.
16. ' Examining the intent and purpose of S.B.C.O., 1979 it appears to have been promulgated to regulate the planning, construction, control and demolition of Building(s), and disposal of buildings and plots in the. Province of Sindh. It tends to curb the practice of growing tendency of unauthorized, illegal, haphazard and mushroom construction that have converted this once a beautiful city, into a jungle of reckless concrete structures. It tends to cultivate environment friendly, orderly and planned construction of buildings, meeting present day requirement ensuring provision of basic amenities, services and facilities for general good and healthy living. The Ordinance, 1979 on the one hand provides guideline and bound down the builders/developers to raise construction strictly in accordance with approved building plans, and town plan regulations.
17. On the other hand, imposes an obligation on prospective buyer to, obtain occupancy certificate.
18. And see that the Authority has given permission to sell, in writing before acquiring and occupying any building. Further that, the unit that is being acquired in fact, is constructed for the purposes it is sold. It also imposes a duty on the Authority to see and enforce strict compliance of the S.B.C.O., 1979 and regulation framed thereunder, through various remedial and penal provisions.
19. ' Subsections (1) to (3) of section 6 are couched in a negative or prohibitive tone, as far as obligation imposed on the builder, from the language and use of word "shall" provisions appears to have been made imperative. Subsection (1) provides that, "no building shall be constructed before the authority has, in the prescribed manner, approved the plan of such building and granted no objection certificate for the construction thereof. Obligation imposed on the builder and occupier/allottee both, in terms of subsection (2) thereof, also appears to be imperative, as tenor of the provision is negative. It provides that, "no building mentioned in the subsection (1) shall be occupied by any person or shall be allowed by the builder to be occupied, before the authority has on application of the occupant or owner, issued occupancy certificate. Again, subsection (3) is in pitched in negative terms, it imposes an obligation on all concerns that, no building mentioned in subsection (1) shall, except with the permission of the authority, be used for the purpose other than that for which its plans were approved. Consequence for breach of section 6(1) specifically and for contravention of any provision of the Ordinance, 1979 are provided in section 7-A and section 19 thereof. Therefore, over all complexion and impression that emerges from examination of subsections (1) to (3) of the section 6, suggest it to be mandatory. Where a statute is enforced to, check and curb a mischief and advance some public good then interpretation that D suppress the mischief and advance the cause and objective of the statute should be adopted. In my opinion if the provision of subsection(2) of section 6 are held to be merely directory, as argued by Mr. Shahanshah, then it would mean that the mischief which was intended to be checked, suppressed and remedied by promulgation of the Ordinance, 1979 would E not be attained. An interpretation, that would defeat the very object and purpose of the Ordinance, 1979 for which it was promulgated, is to be avoided.
20. ' Attending to the contentions of learned counsel for the plaintiffs, in another perspective, it may be observed that no building in terms of section 6(1) of S.B.C.O., 1979 could be constructed without approval of the building plan, in a prescribed manner, by the authority. Nor a building could be offered for sale without approval of the authority in writing as required under section 12. The occupancy certificate within the contemplation of section 6(2) could only be issued in respect of building plan. The Authority cannot issue any occupancy certificate in respect of any building constructed unauthorizedly. Consequences for raising unauthorized construction is provided in terms of section 7-A of the Ordinance, 1979 which inter alia; provides that, where the provisions of subsection(1) of section 6 are violated, the building may without prejudice to any other action including sealing of the building or ejectment of the occupants be ordered by the Authority to be demolished.
21. ' In addition to above consequence, any contravention of Ordinance, 1979 is also met by penal liability in terms of section 19 thereof. It cannot, therefore, be argued that no consequences for breach of section 6(2) (ibid) are provided for.
22. ' Contention of learned counsel for the plaintiffs that, since a right has been created in favour of the plaintiffs by occupying the shops under the conveyance, therefore, the plaintiffs cannot be deprived such rights. The contentions seemingly persuasive, when examined in the contest of the case, were found to be advanced for the sake of arguments and without any substance, for more than one reasons.
23. ' From examination of the sub-lease, executed by the defendant No,2, the Builder, annexed with the plaint invariably in all suits, shows that, the subject were shown to be constructed in accordance with approved building plan No, vide letter No,BCA/DDB-XI/(Prop)/11/84/ 192/87/331, dated 29-2- 1988. The defendant No,1 K.B.C.A. Produced said plan along with statement dated 15-4-2004 in Suit No,1189 of 2004, it shows car parking in the basement. There is no first lower or second lower floor.
24. ' Obtaining "occupancy certificate" is a condition precedent before occupying any premises in any building in terms of subsection (2) of section 6 of K.B.C.A. Ordinance, 1979. Had the allottees and sublessee acted prudently and had taken due care before acquiring subject premises and had they obtained themselves or demanded from the builder "occupancy certificate", before occupying any shop, office or flat in a building, they would have saved themselves from such mischief.
25. Precondition of obtaining occupancy certificate, before occupying the building is purposeful, such precondition is for general good and for the protection of the allottee and intending buyers, to ensure that the premises that is being offered is constructed in accordance with approved plans as committed in the sub-lease. In terms of section 12 of the S.B.C.O., 1979 no builder could offer to sell and or sale building unless it is constructed in accordance with approved building plan. The approval to sell by the authority, containing detail of the building offered for sale, is required to be displayed at the site of the building and a buyer could demand the same before venturing into any transaction. Such conditions are imposed for the public good and for benefit of the purchaser to ensure, that what the builder is offering to sell, he in fact, is authorized to sell. Amenity area provided in the building, like provision for car parking, lift and passage, stairs etc. Are provided in any building not for individual but for general good, same cannot be used or allowed to be used or converted for any other commercial proposition. In terms of sub-Article (2) of Article 5 of the Constitution of Islamic Republic of Pakistan, 1973, observance and adherence to Constitution and law is inviolable obligation of every citizen or any other person in Pakistan. All persons are not only expected but duty bound to observe the law, which are framed for the general good and for orderly society. Where law provides manner as to how an individual is to act while acquiring property in a building, then it imposes an obligation to act accordingly to claim any benefit or right. It is only when one performs his part of the obligation imposed by law, a right is created capable of enforcement. It is time tested principle that, if a thing is required to be done in a particular manner, it has to be done in that very manner alone or not at all. All person are obligated to obey law, no person can be allowed to act in a manner not provided under the law. In case any person acts in breach thereof or in a manner to circumvent or by-pass such obligation then he cannot claim any right of which the foundation rest on the violation, breach or disobedience of law. Right of a person, who acquired the property in breach of provision of subsection (3) of section 3 of S.B.C.O., 1979 has attracted attention of this Court on many occasions. Case of Muhammad Aslam Gatta v. K.B.C.A.
26. 1998 M LD 544, contains a detailed, lucid and beneficial discussion on the subject. In Asma Builders v. Government of Sindh 1999 CLC 326 a Division Bench of this Court observed that, where a building is constructed in violation and deviation of approved plan the authority would be within its right to take action for violation and if necessary to demolish unauthorized structure. Such rule also echoed in Muhammad Saleem v. Administrator K.M.C. 1998 CLC 952. In said case, the premises was sealed, plea of the bona fide purchaser was repealed by the Court, on the ground that, without obtaining occupancy certificate they were not even competent to purchase the premises in question from the owner, builder and occupy the same. In a more recent judgment by a Division Bench of this Court cited as Jamil Ahmed v. K.B.C.A. 2001 M LD 1635, of which I was also a member, respectfully following the dicta laid down in Muhammad Saleem (supra) held as follows:-- "We are also not impressed by the contention that the petitioners could be treated as the bona fide purchasers in any sense of the word when their occupation, without any Occupancy Certificate in defiance of the mandatory provision of law has not been disputed. The Division Bench judgment cited by Mr. Raja Sikandar Khan Yasir covers the case and is binding upon us. Mr. Dasti Muhammad Ibrahim attempted to distinguish it by stating that in the reported case no plan had even existed but we are of the view that, such distinction, if any, goes against the petitioners because in the instant case he attempted to seek validation of his own illegal acts."
27. ' The controversy has now been set at rest by the apex Court, in the case of Muhammad Saleem and 5 others v. Administrator, Karachi Metropolitan Corporation, K.B.C.A. (K.M.C.), Karachi and 2 others 2000 SCM R 1748. Repelling contentions, similar to one raised by Mr. Shehanshah Hussain, at page 1752 it was held by the Honourable Supreme Court:--- "Suffice it to say, petitioners having not verified the right, interest and title of the vendors and having occupied the premises without obtaining occupancy certificate from K.B.C.A. Cannot claim to have acquired a perfect and marketable title to the premises. It was incumbent upon them to be vigilant and over cautious in view of mushroom growth of illegal buildings to find out whether the Project had been constructed with due approval and sanction of K.B.C.A.. And whether requisite occupancy certificate had been obtained from the K.B.C.A. As mandated by law. By not taking care and caution to ascertain the title of the vendors, the petitioners can at best be said to have acquired a defective and unenforceable right to property at their own cost and risk. There is a well- known maxim of law relating to acquisition of property rights namely "Buyer beware" which was obviously not adverted to by the petitioners. Since they were not put into possession of their respective premises as per amended law, they had stepped into the shoes of the builders and could hardly be said to be entitled to the issuance of a show cause notice within the spirit of law."
28. ' In above case the apex Court had even gone a step further. It was held that, since they were not put into possession of their respective, premises as per law, they had stepped into the shoes of the builders, therefore, not entitled to the issuance of a show-cause notice.
29. ' In view of the foregoing discussion, it is not disputed that, in all the suits, the allottees/plaintiffs have not obtained any occupancy certificates as mandated under section 6 (ibid), before occupying their respective shops. No approval in writing of the authority to sell the building as required under section 12 (ibid) has been produced by any of the plaintiffs. Basement as per approved building plan is an amenity area reserved for car parking, cannot be allowed to be converted or used for purposes other than for which it was reserved. No right could be claimed nor enforced where very foundation of such claim is laid on act in breach and disregard of law.
30. ' It may further be observed that in order to ascertain the contravention and illegal construction, if any the Court appointed Nazir of this Court to carry out the inspection. Nazir reported that, the plaintiffs have not approached him to carry out the inspection, which circumstance raises a strong presumption that building has been constructed in violation of the approved plan. It is perhaps for this reason the plaintiffs avoided to carrying out the inspection.
31. ' For the foregoing reasons, in my opinion no prima facie case has been made out neither, balance of inconvenience leans in favour of the plaintiff nor, irreparable loss would be caused to the plaintiff. If so advised, plaintiff may claim refund and damages from the builder. All the listed applications filed by the plaintiffs are dismissed.
32. ' Before parting with this order, it may be observed that, at the time of announcing high rise buildings provision of car parking is kept and public is lured to book flats and offices. It is however, experienced that, such parking facilities are often converted and misused by the builders for unjust financial gains at the cost of others. Such lustful tendency not only deprives the owners and occupants of the building of an amenity committed at the time of announcement of project, at the same time also, put stress and strain on otherwise scarce parking facility available in the city. The Authority is equally responsible for all this menace, their tacit connivance and cooperation with builders cannot be altogether ruled out. It is high time stern action should be taken against all those responsible to check and verify different stages of construction. S.B.C. Authority, may consider keeping and maintaining a logbook for each building and land offered to be sold, containing report of periodic inspection at each stage, progress, quality of construction, breach if any noted, warning and direction to be complied with by the builders and or developer. Logbook may also contain time and date of inspection, name and designation of inspecting authority. In case any entry in the logbook is found to be false or incorrect, stern and strict action could be taken against the delinquent inspecting authority and builder/developer.