1. ' DR. QAMMARUDDIN BOHRA, J.--- By this order application under Order XXXIX, rules 1 and 2, C.P.C.
2. (C.M.A. No,2905 of 2007) and application under Order VII, rule 11, C.P.C. (C.M.A. No,799 of 2008) will stand disposed of.
3. ' Brief facts forming background of the above applications are that plaintiffs Ardeshir R. Cowasjee, Muhammad Javed Iqbal and Rizwan Edhi have filed this suit for declaration, cancellation of documents and injunction against the City District Government Karachi, Karachi Water and Sewerage Board, Karachi Building Control Authority, Government of Sindh, Sui Southern Gas Company Limited, Karachi Electricity Supply Corporation, Amanullah, Zainul Abedin and Iqbal Adda Poonawala. The case of the plaintiffs is that the plaintiffs are concerned citizens of Karachi who are working actively to preserve the physical and built up environment of Karachi and the plaintiffs Nos.2 to 3 are all residents of Ghulam Hussain Kasim Quarters also known as Kharadar which is one of the oldest areas of Karachi. The defendant No,1 is the City District Government Authority created under the Sindh Local Government Ordinance, 2001 (hereinafter referred as S.L.G.O., 2001) and is, inter alia, responsible for the administration of the city of Karachi. The defendant No,2 is the Karachi Water and Sewerage Board an authority created under the Karachi Water and Sewerage Board Act, 1996. The defendant No,3 Karachi Building Control Authority is the authority appointed under section 4 of the Sindh Buildings Control Ordinance, 1979 and is responsible under the Sindh Building Control Ordinance, 1979 for Building Control within the Province of Sindh. The defendant No,4 is the Government of Sindh who is the authority responsible for transferring the administrative functions of the defendant No,2 to the defendant No,1, whereas defendants 5 and 6 are responsible for the provision of crucial amenity services in Karachi in respect of electricity and natural gas. According to the plaintiffs the Karachi Water and Sewage Board since 1885 regulating the sewage facilities in respect of city of Karachi and the area known as Ghulam Hussain Kasim Quarters was first planned, there appeared a Plot No,9 which was entitled as "Ejector". From the plan it is obvious that entire site when initially planned was dedicated for the sole purpose of an Ejector which may be classified as an amenity use or in the alternative would create a customary right as recognized by section 2 of the Easements Act, 1882 to use the same for that purpose. The subject Ejector plot is marked as Ejector 14. The upside of the plot remaining open, the subject plot has always been the target of many land grabbers who have all tried to occupy the said property and construct thereon which would permanently interfere with the sewage system in that locality. That on 27th April, 2000 the defendant No,2-Karachi Water and Sewage Board informed the C.D.G.K. And requested them to restrain from auctioning the subject plot. After promulgation of the S.L.G.O., 2001 and in desperate attempt to earn money, the defendant No,1 again issued notification in Daily Jang dated 18th April, 2004 whereby they attempted to auction the subdivided plot out of three halves and auction the same as a commercial plot at the rate of Rs,60,000 per square yard as Plot No,9-A admeasuring 316.66 square yards and Plot No,9-B admeasuring 429.72 square yards was again advertised in the Daily Dawn on 27th September, 2005 for auction at the rate of Rs,60,000 per square yard. The subject plot was thereafter allotted on 30th September, 2005 under the Rules for Management and Disposal of Waste Lands to Mr. Muhammad Saleem Dewan and Mr. Abdul Qadir and a lease issued on 6th May, 2006 wherein it is stated that the building to be constructed.
4. ' Note: Plaintiffs have not made Saleem Deewan and Abdul Qadir as party in this case.
5. ' The plaintiffs have given the detail of correspondence made between defendant No,2 and defendant No,
1. It is further stated that the previous owners of Plot No,9-B-GK1, Ghulam Hussain Kasim Quarters, Karachi realizing that the plot was going to be a lost cause for them proceeded to use their initiative and sold Plot 9B to the defendants Nos.7 and 8 who are simply front men of the defendant No,10 who is the real. Person behind this illegal construction as keeping in mind the illegality pointed out by the defendant No,2 there was no other person who was willing to develop the subject plot.
6. ' Note: In the plaint there are only nine defendants and no person as defendant No,10.
7. ' That construction was started on Plot No,9B/1, GIK/1, Ghulam Hussain Kasim Quarters, Karachi in or around December, 2006. As the construction was being carried out it was seen that underneath the plot a SUMP was discovered in line with the position taken by the defendant No,2-Karachi Water and Sewage Board. It is further stated that the plaintiffs have examined the above plan which has number of violations and details of the same are given in the plaint. According to the plaintiffs it is obvious that the subject construction which involves the direct removal of a sewage system without any corresponding measures being taken by the defendant No,1 will result in a tremendous nuisance for the citizens of Kharadar who due to the direct and illegal actions of the defendants are going to have suffer an additional load on their now severely depleted situation all on the pretext that the defendant No,1 does not know how to earn revenue other then by selling Nallas and such plots. It is further stated that the plaintiffs have despite pursuing the matter diligently at every forum and being thwarted by nearly every single Government department and have brought before this Honourable Court all the facts and issues pertaining to the subject construction and are left with no course other than to bring this suit in the public interest and in respect of public rights bring a representative suit which is not maintainable in a constitutional petition as the same involves many. Issues in disputed questions of facts. On the basis of above pleadings the plaintiffs have sought following reliefs in the suit:--
(A) That Plot No,9, Ghulam Hussain Kasim Quarters, Karachi is the sole property of the Karachi Water and Sewage Board who are a separate legal entity operating under the Karachi Water and Sewage Board Act, 1996.
(B) That the City District Government Karachi has no right to auction property that belongs to the Karachi Water and Sewage Board Act, 1996.
(C) That the auction conducted by the City District Government Karachi in respect of Plot No,9-B, GHK-1, Ghulam Hussain Kasim Quarters Karachi is void.
(D) That the transfer of Plot No,9-B/1 GHK-1, Ghulam Hussain Kasim Quarters Karachi to the defendants Nos.7 and 8 is void.
(E) That the construction on No,9-B/1, GHK-1, Ghulam Hussain Kasim Quarters, Karachi will create a nuisance in respect of the area known as Kharadar.
(F) That there exists a customary right in terms of section 2(b) of the Easements Act, 1882 that insures that the plot will be remain used for the purpose of providing for sewage facilities for the area known as Kharadar.
8. ' That in the alternative
(G) That the approved plan in respect of the construction on the subject property is in violation of subsection (1) of section 6 of the Sindh Building 'Control Ordinance, 1979 and is as such void.
(H) That the defendant No,1 cannot construct a structure of more than ground + 1 on Plot No,9-B/1, GHK-1, Ghulam Hussain Kasim Quarters, Karachi.
' DIRECT
(A) That defendants jointly and severally to demolish all building works being carried out on the subject property.
' CANCEL
(A) The lease issued by the defendant No,1 in respect of Plot No,9-B/1, GHK-1, Ghulam Hussain Kasim Quarters, Karachi.
' RESTRAIN
(A) The defendant No,1 from constructing on Plot No,9-B/1, GHK-i, Ghulam Hussain Kasim Quarters, Karachi.
(B) The defendants Nos.2, 5 and 6 from issuing any electricity, gas, and sewage connections to the building on Plot No,9-B/1, GHK1, Ghulam Hussain Kasim Quarters, Karachi.
(C) The defendant No,4(iii) from registering any conveyance or interest in respect of any part of the building being constructed on the impugned subject property in favour of any person whatsoever.
9. ' GRANT (A) Cost.
(B) Grant such other relief as this Honourable Court deems just and proper in the circumstances.
10. ' With the plaint application under Order XXXIX, rules 1 and 2, C.P.C.L (C.M.A. No,2905 of 2007) is filed by the plaintiffs whereby they prayed that defendants Nos.7 and 8 be restrained from construction on Plot No,9-B/1, GHK-1, Ghulam Hussain Kasim Quarters, Karachi. In the supporting affidavit it is averred that the subject property does not belong to the City District Government, Karachi and as such cannot be sold by them. That system of sewerage known as Ejector System is included within the system of the subject plot which is being illegally violated by the construction of Plot No,9-B, Ghulam Wasim Quarters, Karachi in violation of the rights of the residents of the area, further that the construction on the subject plot is in violation of the laws as the plan that has been approved by the Karachi Building Control Authority is in violation of the subsection (1) of section 6 of the Sindh Building Control Ordinance, 1979 inasmuch as the same has been approved in violation of the Karachi Building Control and Town Planning Regulations, 2002 and lastly asserted that the plaintiffs have a prima facie case and unless the construction is restrained the plaintiffs will suffer irreparable loss as the entire plot will be constructed thereon which will create an adverse effect to the entire area as a whole and balance of convenience is also in favour of the residents of the area whose forefathers have been residing in this area since 1885 and who because of the illegal activities of the defendants Nos.1, 7 and 8 are all in danger of causing a major crisis in the area.
11. ' On the above application, counter-affidavit is filed by defendant No,1, C.D.G.K. By D.D.O. C.M.-II, who has stated that plaintiffs have no prima facie case nor balance of convenience lies in their favour and they will not suffer any irreparable loss, if the application under reply is dismissed. They further stated that the plaintiffs cannot claim the reliefs which are barred under sections 42 and 56 of Specific Relief Act and plaintiffs have not approached this Court with clean hands and have filed the present suit along with injunction application with mala fide intention and without any legal vested rights. In para. 6 of the counter-affidavit details regarding subject-land which are reproduced as under:--
(6) That Plot No,9, GK-1 is the absolute property of K.M.C. (Defunct) from its creation since when Ghulam Hussain Kasim Quarters (Kharadar) planned by Municipality under British Crown. As per the record of rights old enquiry register (1919- 1920) maintained by the Revenue Department Sindh.
12. This piece of land in Column No,4 shown as unnumbered and open space under ownership of Karachi Municipality in Kharadar area,Ghulam Hussain Kasim Quarters, having old Sheet No,C-7, subsequently, they renumbered as GK-1. Moreover, in 1919-1920 the Re-survey was conducted by City Surveyor, Revenue Department, and new number of plot along with new sheet number allocated as GK-1/9, Ghulam Hussain Kasim Quarters shown in Column No,12 of copy of Enquiry Register of Revenue Department. In Resurvey the planning of Ejector is shown without any reservation of area in Column No,8 of the said copy of the Enquiry Register. At that time the Karachi is developing and almost area of Kharadar, GK Quarters was waste land of Municipality. After resurvey in 1920 the proper area of the plot was ascertained by the City Surveyor of the Revenue Department. The total area comes upto 990 square yards and the Ejector was shown on only near about 50 square yards which was limited to its allocated space and in no way disturbed during the course of auction of K.M.C./C.D.G.K. Property. Thereafter, this open waste land of K.M.C. During 1960- 1970 the land tried to be encroached by the land grabbers and the K.M.C. (defunct) to protect and need in order to establish a Sea Dues Collection Office of Octroi Department, K.M.C. Was established on this waste land of K.M.C. However, the sweepers of K.M.C. Construct temporary hutments on this land which was subsequently, removed by the K.M.C. In the year 1999. This open precious land of K.M.C. Always a good target to the greedy eyes of land grabbers. As such to protect from the encroachers this plot was placed on open auction after getting approval of the then Administrator, K.M.C. The auction of the Plot No,9, GK-1, Ghulam Hussain Kasim Quarters took place six times viz. 30-9-1997, 5-1-1999, 26-9-2002, 26-10-2002, 20-11-2002 and 24-1-2003, but no one offer any reasonable bid as the plot having a big area. Thereafter the said plot carefully subdivided saving the existing installation of Ejector and more 150 square yards left open for future use. The Plot No,9-A, GK-1, admeasuring 429.72 square yards was placed for open auction and subsequently the Plot No,9-A, GK-1, was disposed off on 24-1-2003 @ Rs,62,000 per square yard and Plot No,9-B, GK-1, disposed off on 28-9-2005 @ 86,000 per square yard. It is further submitted that no land has so far been transferred to KW&SB by any of the land owning agency including K.M.C.
13. (defunct). As far as the Ejector No,14 is concerned, neither the KW&SB is able to produce the legal title documents of ownership of the defunct K.M.C. And C.D.G.K. Property. The existing Ejector is only maintained by KW&SB as per present arrangements. No installation of existing Ejector No,14 is ever disturbed during the auction of exclusive defunct K.M.C. Property which is now the property of C.D.G.K. Under section 180 subsection 1(a) of S.L.G.O., 2001.
14. ' Lastly the defendant-C.D.G.K. Stated that for brevity sake the contents of written statement may be treated as part and parcel of the counter-affidavit.
15. ' The defendant No,2 Karachi Water and Sewage Board has also filed its counter-affidavit to the application of plaintiffs for interim injunction, wherein they contended that the contents of their written statement be taken as reply to admit or deny the contents of the application of the plaintiffs under Order XXXIX, rules 1 and 2, C.P.C. The counter-affidavit is also accompanied with the affidavit.
16. ' The defendant No,3 K.B.C.A. Also filed its counter-affidavit by Town Building Control Officer, Saddar Town-I, K.B.C.A., Karachi and in the counter-affidavit brief history of the plot in question is given which is reproduced as under:--
(1) It is most respectfully and humbly submitted that the proposed building plan in respect of plot number mentioned above admeasuring 429.30 square yards was submitted for Group with Loft (shops) + 4 upper floor (flats), along with all relevant documents duly accompanied by NOC dated 6-7-2006, from the C.D.G.K., the lessor.
(2) That the case of the proposed plan was sent to the Town Planning Section for their N.O.C. And the TP, Section issued their NOC, dated 6-11-2006.
(3) That Architectural Concept Plan of the building was also approved by the Authority vide letter, dated 16-11-2006.
(4) That the structure drawings were also sent to the Structure Section K.B.C.A. Who after scrutiny of the case issued Structural Clearance/NOC.
(5) That after completion of all legal and technical formalities, the K.B.C.A. Granted approval of the proposed building plan of ground with loft (shops) + 4 upper floors (flats) only, vide letter, dated 23-12-2006 and in the end they prayed that in light of the above mentioned facts and circumstances, the application under reply may please be dismissed with directions to raise construction in accordance with approved building plan.
17. ' On behalf of the defendant No,4 Government of Sindh, Deputy Secretary (Land Utilization-II) filed a statement wherein it is stated that the Government of Sindh has been arrayed as defendant No,4 and further stated that the land in question is sole property of C.D.G.K. Defendant No,2 and no interest of Province of Sindh is involved, as such no written statement on behalf of defendant No,4 is needed.
18. ' Defendants Nos.5 and 6 though served did not turn up.
19. ' The main contesting defendants are defendants Nos.7 and 8 and on their behalf defendant No,7 Amanullah filed counter-affidavit to application for interim injunction of the plaintiffs wherein it is asserted that Plot No,-GK-1/9 belonged to the Karachi Municipality now C.D.G.K.; the said plot was sub-divided into two Plots Nos.9-A and 9-B and 240 square yards was left for Karachi Water and Sewerage Board pump and passage to the said pump and about 121 square yards has been left open from Plot No,10 for the future planning and use by the KW&SB; at present KW&SB has about 360 square yards for their present and future use. The Plot No,9-B measuring 429.72 square yards was auctioned by the City District Government, Karachi and was purchased by Muhanunad Saleem Diwan and Abdul Qadir as a highest bidder. After payment of full amount City District Government, Karachi entered into an agreement to lease of the plot in favour of Muhammad Saleem Diwan and Abdul Qadir; the defendants Nos.7 and 8 purchased the property from the said Muhammad Saleem Diwan and Abdul Qadir and the City District Government, Karachi duly mutated the said plot in their name; thereafter they obtained N.O.C. From the City District Government, Karachi for the proposed building plan for submission to Karachi Building Control Authority. Then accordingly they filed the plan for approval with the K.B.C.A. Which was duly approved vide letter, dated 23-12-2006 and all the relevant documents were attached in support of the above. The plaintiff No,1 has nothing to do with the present construction and neither he visited the area nor he has any personal knowledge, his name has been used to influence various departments of the Government. Similarly the plaintiff No,3 is also using the name of Edhi though he is son of Mehmood Ghaznavi. He has also denied that the plaintiffs are working actively to preserve the physical and buildup environment of Karachi. He further stated that plot in suit was never the property of the defendant No,2 Karachi Water and Sewerage Board. It is further asserted in para.10 of the counter-affidavit that section 10 of Karachi Water and Sewerage Board Act, 1996 mentions that "the right concerned by section 1(1) shall not be exercisable in respect of any property vested in or under the control and management of the Federal Administration with the prior permission of such Government or Local Authority or Railway Administrative". It is further asserted that under Notification Annexure "A/2" the Government of Sindh is pleased to notify that the Karachi Water and Sewerage Board devolved to the City District Government, Karachi and the powers and functions of KW&SB are devolved to the City District Government, Karachi and Towns and under Notification of Government of Sindh dated 13-12-2002 the Government of Sindh was pleased to establish an additional group of office namely "Water and Sanitation". By Notification Annexure "A/4" the Government of Sindh reconstituted the Board of Karachi Water and Sewerage Board and Nazim City District Government Karachi was the Chairman under this Notification.
20. According to defendants Nos.7 and 8 they are the owners of the plot in suit and the defendant No,9 is an stranger as far the present plot in suit is concerned and defendant No,9 has wrongly been impleaded in the suit. In para.14 of the counter-affidavit, the defendants Nos.7 and 8 asserted that if the defendant No,2 has any grievance then he is at liberty to file any proceedings and the plaintiffs have no right to plead case on behalf of defendant No,2 and it was denied that site was initially planned and was dedicated for the sole purpose of Ejector and that it may be classified as an amenity use. They further stated that defendant No,1 as owner of the plot had full right and authority to dispose of the same through auction and the Plot bearing No,9-B was legally allotted to the highest bidder Muhammad Saleem Diwan and Abdul Qadir and it was denied that only two floor (ground and first floor) was allowed to be constructed on the subject property. It was further submitted that in the agreement to lease clause (7) was omitted as not applicable and only K.B.C.A. Bye-laws will be applicable and accordingly the City District Government.Karachi and the K.B.C.A. Duly approved the building plan for ground and four floors. It is further stated by the defendants Nos.7 and 8 that on the objection of Karachi Water and Sewerage Board meeting was held on 5-4-2007 at the office of Nazim, Saddar Town, SE (Sew) Pumping K.W.S.B., D.O.(LM)-II, C.D.G.K., E.E., SPD-II, CE (E&M), SE (Saddar), AEE (Sew) Saddar Town and after detailed deliberation and after perusal of various documents the meeting concluded with the following observations:-- "After detailed discussion, it become crystal clear that since no line exist in the above mentioned plot, so the question of existing of sewerage line as well as other lines does not arise. All the participants of the meeting agreed with the version of Mr. Gulzar Memon, Chief Engineer (E&M) and Mr. Ghulam Qadir (S.E.) KW&SB, Saddar Town, therefore, it was decided that the matter may deemed to be settled."
21. ' It is further asserted in the counter-affidavit that the defendant No,2 Karachi Water and Sewerage Board was not the owner of the plot in suit as such they could not produce any document showing their ownership of the plot in suit. They further submitted the defendants Nos.7 and 8 are the present real owners of the plot in suit and no other person is in any manner connected with them in this regard; the plaintiffs have mentioned someone as defendant No,10 whereas there are only nine
(9) defendants in the suit. The defendants Nos.7 and 8 further asserted that there is no "SUMP" underneath the plot of the answering defendant and the alleged dispute between Karachi Water and Sewerage Board and City District Government, Karachi was settled in the meeting held on 5-4- 2007 to the satisfaction of the department. In para.24 of the counter-affidavit, the defendants Nos.7 and 8 submitted that the Karachi Building Control Authority has been inspecting the construction and always they found it in accordance with the approved plan except that they had objected to boundary wall which was demolished. It is denied by them that the plot was unlawfully subdivided to the size less than 400 square yard, as alleged. It is further submitted by them that Karachi Building and Town Planning Regulations, 2002, Regulation 18-3.1.10 regarding city area in Ghulam Hussain Qasim Quarters minimum area of subdivided plot is 142 square yards and minimum frontage of 30 feet whereas the plot in suit has frontage of 60 feet. The defendants Nos.7 and 8 submitted that Nazir of this Honourable Court has inspected the site and submitted his report and along with which he has filed sketch submitted by the defendant No,2 which clearly shows that no sewerage line passes through Plot No,9-B and the Ejector and pump is away from the Plot No,9-B.
22. In last paragraphs of their counter-affidavit, the defendants Nos.7 and 8 submitted that they are the lawful owners of the plot in suit and they have every right to develop the plot in accordance with law and submitted that plaintiffs cannot seek declaration that the property in suit is the sole property of the defendant No,2 and the plaintiffs are not entitled to any of the reliefs claimed by them in the plaint and that the suit has been filed for ulterior motives and is liable to be dismissed.
23. They further stated that they have spent crores of rupees so far and want to complete the construction according to the approved building plans and to hand over shops and other tenements to the allottees, who have invested considerable amount and have ownership interest in the building.
24. ' The defendant No,9 also filed a statement whereby without admitting the contents of the plaint so far as they relate in respect of defendant No,9 'that neither the defendant No,9 is the owner nor partner of the owners of the plot as such defendant No,9 has no concern or any interest in the Plot No,GK-9-B.
25. ' The learned counsel for the plaintiffs arguing in respect of his application C.M.A. No,2905 of 2007 under Order XXXIX, rules 1 and 2, C.P.C., repeated almost the same contentions which had already been given in plaint and in the application for interim injunction and its supporting affidavit. His main contentions in support of his application are mainly on two points that the subject suit whereby the defendants are required to be restrained from construction on Plot No,9-B, Ghulam Hussain Qasim Quarters, Karachi which property has been subdivided by the City District Government, Karachi from the original plot numbered 9, otherwise entire plot was from its inception dedicated to the use of Ejector and for no other purpose. In this connection his further contention is that the property by virtue of subsection (2) of section 220 of Karachi Water and Sewerage Board Act, 1996 being transferred to the Karachi Water and Sewerage Board hence the City District Government Karachi had no right to dispose of the same. He further submitted that this issue has no relevancy to the Karachi Building Control Authority whatsoever and his concern is only with the City District Government Karachi and in this regard his further contention is that City of Karachi has numerous authorities to regulate civic amenities and Karachi Municipality was formed in 1850 and was solely responsible for the maintenance and development of sewerage system for Karachi; that with the partition of the India and creation of Pakistan, the Karachi Municipality was replaced with the Karachi Development Authority to control sewage in areas which came within the administration of Karachi Development Authority. The dichotomy in control of sewage led to the promulgation of the Karachi Water Board Act, 1983 (Ordinance II of 1983) which amended the Sindh Local Government Ordinance, 2001 and inserted a new Chapter XVI entitled Karachi Water and Sewage Board and since then Karachi Water and Sewage Board is a separate legal entity. He further contended that by clause (vi) of subsection (2) of section 147 of Sindh Local Government Ordinance, 2001 all property including all water works and installation held by Karachi Water Management Board shall vest in Karachi Metropolitan Corporation as such by operation of law all properties in respect of Water and Sewage were brought under the authority i,e, the Karachi Municipal Corporation by an amendment to the Sindh Local Government Ordinance, 2001 as promulgated by Parliament (note no such provision is available in Sindh Local Government Ordinance, 2001) and finally on the above point he contended that the property Plot No,B-9 is amenity plot and it cannot be subdivided nor any part of the said plot be disposed of by way of auction and the property by operation of above referred provision of the Sindh Local Government Ordinance vested and stands transferred to the Karachi Water and Sewage Board and for this purpose no title document is required and the City District Government in violation of the above provisions of Sindh Local Government Ordinance, 2001 exceeded to their jurisdiction by dividing the plot and auctioned the same to defendants Nos.7 and 8.
26. ' The second point which the learned counsel stressed upon is that the approved plan in respect of the construction on the property has been approved in violation of the provisions of Sindh Building Control Ordinance, 1979 and the Karachi Building and Town Planning Regulations, 2002 framed thereunder. His further contention is that the construction by defendants Nos.7 and 8 has been carried on the subject plot which is designated as amenity plot and, therefore, it is deviated from the approved plan in violation of subsection (1) of section 6 of the Sindh Building Control Ordinance, 1979. He further contended that without prejudice to the question of ownership of the plot the designation of classification of lands as well as in respect of the construction on the subject property, the law which regulates these two activities are the Sindh Building Control Ordinance, 1979 and the Karachi Building Control and Town Planning Regulations, 2002. He further contended that land of City of Karachi can only be divided into five categories which are as under:- -
(i) Residential (Regulation 2-107), (ii) Commercial (Regulation 2-33), (iii) Industrial (Regulation 2- 67), (iv) Flat Sites (Regulation 2-54), (v) Amenity (Regulation 2-7).
27. ' By referring the above five categories, the learned counsel reiterated the same facts as mentioned above that the starting point for determining the use of land in respect of the City of Karachi, is a deed of lease and contended that in the subject suit no deed of lease has been produced and instead a map has been produced which is Annexure "D" at page 75 of the plaint, which is an identical copy of the document which is attached by the defendant No,1 with his written statement which indicates that the entire Plot No,9 has been identified as being used for an Ejector.
28. In this regard he also referred to copy of an extract from a property register indicating that the entire property is dedicated for the purpose of an Ejector. He further contended that amenity plot has been defined in Regulation 2-7 of the Karachi Building Control and Town Planning Regulations, 2002. He also referred Regulation 19-2.2.1 of Karachi Building Control and Town Planning Regulations, 2002 and contended that plot in question being amenity is exclusive dedicated for Ejector and cannot be subdivided nor any part of it can be used for any other purpose nor it can be auctioned to the public and in respect of the word used in the above regulations placed reliance on the following case-laws:--
(1) 1991 SCMR 543 at page 549, (2) PLD 1989 SC 128 and (3) PLD 1971 SC 212.
29. ' He also referred another Regulation No,18.41 of the Karachi Building and Town Planning Regulations, 2002 which relates to change of land, use of amenity; no amenity plot reserved for the specific purpose shall be converted or utilized for any other purpose. In support of his contention he placed reliance on the following case-laws:---
(1) 2006 YLR 185, (2) PLD 1994 SC 512, (3) 1999 SCMR 2883, (4) 1998 MLD 1264, (5) 1999 YLR 1634, (6)
30. PLD 2000 Kar. 168, (7) 2002 MLD 1247, (8) PLD 2003 Kar. 162, (9) 2003 YLR 1473, (10) 2006 YLR 2412, (11)
31. PLD 2005 SC 361, (12) Writ Petition No,1226 of 2006, (C.A. No,45 of 2006 (13) order in C.P. No,36 of 2005. ' and lastly contended that conversion of the subject plot will disturb the working of Karachi Water and Sewage Board as according to him the subdivided plot of subject plot underneath there are sewage lines. He further contended that no general development permit or special development permit as required by Regulation 3-3 of Karachi Building and Town Planning Regulations, 2002 has been obtained and no approval under Regulation 18 of the above Regulations has been obtained; that the chamfer of the plot is incorrect/undersized perpendicular distance must be 9 feet as shown in Fig.3 of Regulation 25 of the Karachi Building Control and Town Planning Regulations, 2002; and that the plot has been unlawfully subdivided to a size less than 400 square yards with a frontage less than 60 feet as required by Regulation 18-3.1.4 of the Karachi Building Control and Town Planning Regulations, 2002.
32. ' In response to the contention of. The learned counsel for the plaintiffs, the learned counsel for the defendant No,1 C.D.G.K. Contended that subject suit as framed is not maintainable as the plaintiffs are neither aggrieved persons nor they have any locus standi to file this subject suit against the legal action taken by the defendant/C.D.G.K. He further contended that C.D.G.K. Have all legal rights to dispose of its open land through open public auction according to law and rules. He further contended that the plaintiffs are even not residents of the area in which the plot in question is situated. His strong contentions are that property in question admittedly belongs to the defunct K.M.C. And now the property vested/owned by C.D.G.K. Being an open land/plot meant for auction and it is not an amenity plot since its inception since, 1874. The learned counsel further contended that C.D.G.K. Being competent for disposal of its open land as it is created under S.L.G.O., 2001 and by virtue of section 13 of S.L.G.O., 2001 indicates "composition of District Government". And section 121 of S.L.G.O., 2001 is in respect of ownership of immovable property and by virtue of section 180 the C.D.G.K. Succeeded of the properties, assets and liabilities and then section 124 empowers the C,D.G.K. For the use and disposal of properties of Local Government and it provides sale by public auction on payment of full occupancy value. He contended that now the suit plot which was owned by the K.M.C. Which is now defunct and the property now vested and owned by the C.D.G.K.
33. And plaintiffs do not have any legal rights and character to file the suit under section 42 of the Specific Relief Act as they are neither allottees nor lessees or the licensors and have no concern with the plot in question. He further contended that the plaintiffs as per contents in their plaint are worried that the C.D.G.K. And disposed of an ejector of K.M.C. Situated on K.M.C. Land while factual position is that C.D.G.K. Had not disturbed any part of its installation nor any installation was included in the above said auction which fact is also clear from the Nazir report that the Ejector is still working in the previous conditions and contended that the suit filed by the plaintiffs is based on mala fide and same has been filed without any legal vested right and moreover the KW&SB who is also party in the matter has neither made complaint that their Ejector has been disturbed by the C.D.G.K. And they are the best party to come and agitate if they have any apprehension that the functioning of their Ejector has been disturbed, but the plaintiffs have no right and he lastly contended that the plaintiffs have no prima facie case nor balance of convenience lies in their favour nor they will suffer any irreparable loss if the application of injunction is refused by this Court.
34. ' The learned counsel for the respondent No,2 i,e, Karachi Water and Sewerage Board contended and argued and gave history of Ejector 14 and contended that Ejector 14 was established in 1885 and remained under the control of K.M.C. Defunct till 1983 and thereafter on promulgation of Sindh Local Government Ordinance, 2001 (S.L.G.O., 2001) and by virtue of its section 12 the management of Ejector came under the control of Karachi Water and Sewerage Board. He further contended that defunct K.M.C. At different occasions got published notices for auction of land reserved for Ejector 14 and after subdivision of main plot sold it out two plots through public auction and now held by defendants Nos.7 and 8. He further reiterated the same contention as raised in the written statement and support the contention of the learned counsel for the plaintiffs that the entire area of land is Ejector 14 and on the basis of section 20(1) belonged to the Karachi Water and Sewage Board and presently Ejector 14 is in operation over an actual area of 240 square yards under management and control of Karachi Water and Sewage Board. However, he admitted that no live sewage line is passing through the newly created Plot No,9-B measuring 429 square yards situated on plot and he lastly contended that it is true that the functioning of Ejector 14 is not disturbed. He further contended that the defendant No,2 is a separate legal entity created and operated under Karachi Water and Sewage Board Act, 1996, as such C.D.G.K. Has no right to sell the same especially when the land is reserved exclusively for amenity purpose.
35. ' The learned counsel for the K.B.C.A. Argued that the litigants preferred to drag the K.B.C.A. Into endless litigation and consequently the K.B.C.A. Being defendant has to defend many false and frivolous litigations as like the present one which is very alarming situation as it incurred sufficient financial expenditures over baseless and mala fide claims of the public litigants. No violation of rules and procedure has been made for approval of the plan for construction over the plot in question nor any violation is allowed for raising construction so far on the plot. Lastly, he prayed that injunction application must be dismissed.
36. ' The A.A.-G. Appearing for Government of Sindh being defendant No,4 contended that the suit is barred under section 42 of the Specific Relief Act, the plaintiffs have no legal right or personal interest in plot in suit. It is property of C.D.G.K. And the reliefs sought for declaration and injunction cannot be granted under section 42 of the Specific Relief Act. He further contended that C.D.G.K.
37. Being owner of the plot in suit had full power and legal right to auction the plot. He further contended that plaintiffs have argued on one hand that land in question is an amenity land whereas he failed to point out any documents which could substantially be helpful to the plaintiffs.
38. He referred prayer clause "H" of the plaint at page 27 whereby plaintiffs have suggested that the C.D.G.K. Can raise construction only ground+one and this established the fact that the land in question is owned by the C.D.G.K. And is not an amenity plot/land and he lastly contended that they fully support the case of C.D.G.K. And also placed reliance on Nazir report which clearly shows that the water and sewage lines situated far away from the suit plot and no line passes through or under the suit-land.
39. ' The learned counsel for the defendants Nos.7 and 8 who are the main contesting defendants argued that the suit filed by the plaintiffs is not maintainable and plaint is liable to be rejected under Order VII, rule 11, C.P.C. So far as the injunction application is concerned he contended that the plaintiffs cannot pray for restraint order against the defendants Nos.7 and 8 from construction on the Plot No,9-B suit plot as the defendants Nos.7 and 8 are legal owners of plot in question. He further contended that plaintiffs have mentioned in their application and supporting affidavit in paragraph 2(2) that the Ejector system is included within the system of subject plot which is being illegally violated by construction of Plot No,9-B/1. It is significant to note that the defendants neither are the owners of Plot No,9-B/1 nor of 9-A as alleged. He further contended by referring the written statement of C.D.G.K. That auction of the Plot No,9-GK-1, Ghulam Hussain Quarters was placed for auction six times i,e, on 30-9-1987, 5-1-1999, 26-9-2002, 26-10-2002, 20-11-2002 and 24-1-2003 and finally auction took place on 28-9-2005 and plot of suit-land was auctioned by bifurcation of the rest land. The learned counsel contended that the plaintiffs throughout during the times of auction of the plot kept quiet and even, when the Plot 9-B was auctioned they did not come to the Court. He further contended that the defendants Nos.7 and 8 after approval of their building plan started construction and when they reached near to final stage of the construction of the plaintiffs filed the suit which clearly shows mala fides on their part. He further contended that the Karachi Water and Sewerage Board could not produce any title documents in their favour whereas the C.D.G.K.
40. Produced the extract showing the plot as Municipality plot and same extract is relied and produced by the plaintiffs. He further contended that plaintiffs have miserably failed to show that the plot in question is an amenity plot and that the sewage lines of Ejector are passing underneath of the plot and he referred the Nazir report in this connection. He further contended that the plaintiffs' counsel have filed elaborated arguments, but did not even touch the cardinal principles of the grant of injunction which are prima facie case, balance of convenience and irreparable loss and according to him plaintiffs have no prima facie case and the suit is barred under section 42 of Specific Relief Act and the prayer for declaration that the Karachi Water and Sewerage Board is the owner of the plot, cannot be granted and whereas Karachi Water and Sewerage Board is silent on this subject.
41. He further contended that KW&SB are not claiming any such direction despite they have filed the written statement and the counter-affidavit to the application. He further contended that the balance of convenience also lies in favour of answering defendants Nos.7 and 8 as they lawfully got the plot in suit and submitted the approved plan of K.B.C.A. Who approved the building plan of defendants Nos.7 and 8 being the owners of the plot. He further contended that the defendants Nos.7 and 8 are entitled to raise construction which they have already raised in accordance with approved plan. So far irreparable loss is concerned, the learned counsel contended that it is the defendants Nos.7 and 8 who have incurred crores of rupees in obtaining plot getting approval of the building plan, raising construction thereon and also made commitment to the proposed buyers of the shops and tenements who are facing great hardship as the plaintiffs got restraining order against defendants Nos.7 and 8 and the entire construction has been stopped and in the meanwhile costs of the cement and steal has gone sky high as such the defendants are suffering irreparable loss. He further, towards concluding his arguments, submitted that entire case-laws cited by the learned counsel in respect of amenity plot wherein he failed to show that the suit plot was ever being an amenity plot. The plot in question was bifurcated from the Plot No,9 into three categories and out of which Plot No,9-B was sold in an open auction after observing all the legal formalities to the highest bidders namely Saleem Deewan and Abdul Qadir. The answering defendant purchased the plot in suit from the aforesaid person and the City District Government Karachi, C.D.G.K. Transferred/mutated the Plot No,9-B in the name of defendants Nos.7 and 8 as per Annexure "B" filed with the counter-affidavit and defendants then obtained N.O.C. From C.D.G.K. For the proposed building plan and for submission of the same with the K.B.C.A. Who duly approved the same vide their letter dated 23-12-2006 which is Annexure "D" and C.D.G.K. Being the owner of the plot had a full right and authority to dispose of the same through auction. He lastly contended that on the objections of Karachi Water and Sewerage Board a meeting was held on 5-4-2007 at the Office of Nazim Sadar Town Karachi in which Town Municipality Officers Officer Saddar Town SE
(SWE) Pumping K.W.S.B., D.O. (LM)-II, C.D.G.K., and other concerned officers as well as the defendant No,7 attended and after detailed deliberations it was held that no line exists in the above mentioned plot and the question of sewage lines as well as other lines does not arise and all the participants of the meeting agreed with the version of Mr. Gulzar Memon, Chief Engineer (E&M) and Mr. Ghulam Qadir K(SE), Karachi Water and Sewage Board Saddar Town, therefore, it was decided that the matter may be settled. Copies of such minutes are filed along with counter-affidavit of the defendant No,7 as Annexure "E". The learned counsel prayed that the plaintiff injunction application in view of the above submission is liable to be dismissed and placed reliance on AIR 1924 Pat. Page 706.
42. ' As regards the contention regarding plot in question that it is the amenity plot reserved for Ejector only, about ownership and its subsequent transfer to defendants Nos.7 and 8 by way of auction and the construction over the plot, this Court has well-considered the contentions raised by the parties Advocate.
43. ' In this regard, we have to go through the history of plot which emerges from the contents of the plaint and the written statement filed by the defendants Nos.1, 7 and 8. As per lay out plan of 1874 when the City of Karachi was under the Control of Bombay the land of Plot No,9 Sheet No,C-7 Muchi Miani Quarters was a open land of the then Municipality of Kurrachee. From the birth of the plot no amenity purpose or other purpose defined or shown in 134 years in original map of Karachi. This position is also reflected from the extract from the old Enquiry Register of Revenue Department, which has been annexed by defendant No,1 with his written statement as Annexure "A". In the said plan nowhere it has been mentioned that the whole plot which is 990 square yards is exclusively for the use of Ejector. In the column of owners name of Karachi Municipality (Municipal Ejector 14 has been mentioned) whereas in column of Survey No,6 clearly mentioning open space. At that time the locality of subject plot was grooming the Government in 1919-1920 plan to resurvey the old area of the city by City Surveyor. The Surveyor resurveyed the Muchi Miani Quarters and renamed as Ghulam Hussain Kasim Quarters and charges and reallocation of land zoning made as required time to time need by authority. After eleven years the layout plan of 1931 clearly shows the planning of area and land marking. After survey in 1920 the proper area of the plot was ascertained which comes upto 990 square yards which was limited to its allocated area but originally its status by birth remained as open land of Municipality till 2005. During the lapse of more than 100 years neither any individual nor any department apprehend regarding the Municipal land.
44. ' When the K.M.C./C.D.G.K. Ease some revenue for this open land then the NGO/Individuals are apprehended the money goes to Government instead of their pockets. Further the K.M.C. Is a separate authority and before creation of C.D.G.K. It has a Planning and Drawing Section for technical working of Land Department under Sindh Local People Council Land Rules, 1975. The K.M.C.
45. Is quite competent to subdivide the plots required after approval of Competent Authority. It is suffice to mentioned here that K.B.C. And T.P.R. Notified in 2002 after the creation of City District Government Karachi. It does not apply on all the working of land which would complete before its notification. As such no any kind of land development permits are required as per 17.3.3.2 K.B.C. And T.P.R. As contended by the learned counsel for the plaintiffs.
46. ' Regarding the ownership whether the property vested with the defendant No,2 i,e, Karachi Water and Sewerage Board or with defendant No,1 C.D.G.K., the Water and Sewerage Board in their counter-affidavit/written statement clearly stated that the legal position of the property is to be determined by this Court that whether the same is illegally sold to the defendants Nos.7 and 8, but nowhere they claimed that the subject property is owned and belonged to Karachi Water and Sewerage Board as asserted by the plaintiffs.
47. ' Whereas on the other hand defendant No,1 C.D.G.K. Vehemently opposed that the plot in question is belonging to Water and Sewerage Board. The C.D.G.K. By supporting the maps and the extract of enquiry register contended that the Plot No,9 is the property of C.D.G.K. And the said plot was sub- divided into two Plots Nos.9-A and 9-B and 240 square yards was left to Karachi Water and Sewerage Board pump and passage to the said pump and about 121 square yards has been left open from Plot No,10 for the future planning and use by the KW&SB. At present KW&SB has about 360 square yards for their present and future use. The Plot No,9-B measuring 429.72 square yards was legally auctioned by the City District Government, Karachi. The section 10 of Karachi Water and Sewerage Board Act 1996 clearly mentions that "the right concerned by section 1(1) shall not be exercisable in respect of any property vested in or under the control of management of the Federal Administration with the prior permission of such Government or Local Authority or Railway Administrative". Under notification Annexure "A/2" with written statement of defendant No,1, the Government of Sindh is pleased to notify that the Karachi Water and Sewerage Board devolved to the City District Government Karachi and the powers and functions of KW&SB are devolved to the City District Government Karachi and Towns and under Notification of Government of Sindh dated 13-12-2002 the Government of Sindh was pleased to establish an additional group of office namely "Water and Sanitation" and then by another Notification reconstituted the Board of Karachi Water and Sewerage Board and Nazim City District Government Karachi was the Chairman under this Notification which means in other words KW&SB is the sister concern of C.D.G.K.
48. ' Moreover, there is a letter from the Chief Engineer (E&M), Karachi Water and Sewerage Board which is addressed to the Legal Advisor on the subject (Annexure "I/4" to the plaint) which is the reply of the correspondence of Karachi Water and Sewerage Board in respect of encroachment over the pr.Operty Ejector-14, Plot No,9-A, GK-1, Kharadar Ghulam Hussain Quarters, wherein it is admitted the plot in question No,9-B is one of the subdivided plots and it clearly speaks that "Karachi Water and Sewerage Board" has no legal documents of ownership of the said plot, except the S.L.G. (Amendment Ordinance), 1983.
49. ' Moreover, it has come on record that the original Plot No,9 was subdivided in three parts i,e, Plot No,9-A, 9-B and left 240 square yards for use of the Ejector for present as well as for future expansion. After sub-dividing the plot when the Plot No,9-A was put for auction then the dispute started and the plaintiffs and other persons said to be from locality started moving different applications and giving articles in the publication to draw the attention of the different authorities and then also correspondences were exchanged between the Karachi Water and Sewerage Board and the C. D. G. K. Whereby the Water and Sewerage Board admitted by correspondence that they have no .Title documents for the plot in question, except that by virtue of Ordinance, the property vests with them.
50. ' Whereas on the other hand it is manifest from the documents and that too filed by the plaintiffs that the plot since its inception has been open space whereas at a small portion an Ejector is being operating and the plot belongs to Karachi Municipality i.e subsequently, K.M,C. Which is now defunct and the property vested with the C.D.G.K.
51. ' K.B.C.A. With their application under Order VII, rule 11, C.P.C. Have filed photocopy of Resolution bearing No,146 mentioning that the Resolution for restraining the auction of Plots Nos.9-A and 10 subdivided from Plot No,9, which has been rejected by the house.
52. ' The suit which is filed by the plaintiffs is based on the main ground that the plot which was bifurcated by the C.D.G.K. Into Plot No,9-A 316.66 square yards (commercial), Plot No,9-B, 429.72 square yards (commercial). Subsequently sold out two plots in auction is illegal as the Plot No,9 is an amenity plot since its inception and it cannot be used for any other purpose, but in support of his contention the plaintiffs failed to produce any single document which can show that Plot No,9 is an amenity plot and they also failed to bring anything on record which can give glance that at any stage after the birth of Plot No,9 till this date it has been declared that it cannot be used for any other purpose other than only for Ejector. Admittedly the Ejector No,14 is on a small portion of the plot No,9 and it has also come under the above discussion that the said Ejector since its inception till this date has not been affected and is properly functioning.
53. ' The amenity plot is defined in Karachi Building and Town Planning Regulations, 2002 under Chapter 2 Definitions clause 2-7 which is reproduced as under:--- "Amenity plot" under 2-7 means a plot allocated exclusively for the purpose of amenity uses as defined in Chapter 19 of the Regulation such as:--- Government uses in 19-2.2-1 Health and welfare uses in 19-2.2 Education uses in 19-2.2.3 Assembly uses in 19-2.2.4 Religious uses in 19-2.2.
54. Parks and playground in 19-2.2.7 Playgrounds in 19-2.2.8 Transportation rights of way in 12-2.9 Parking area in 19.2.10 ' But, at no place it is mentioned that the Ejector on plot comes under the amenity plot. Even otherwise, for the sake of arguments if on the land at some portion Ejector is allowed to function, it does not mean that the whole land/plot cannot be used for any other purpose. It is also pertinent to note that the definition as given above wherein after 19.2.2.5 thereafter 19.2.2.7 which has been shown in Chapter 9 as a commercial uses. Similarly after deleting 19-2.2.11, mention recreational areas 19-2.2.12 and 19-2.2.11 has been shown as residuary manufacturing. It is clear that whatever has been included in the Chapter 19 as mentioned above will be deemed to be amenity plot and whatever has been omitted and left over cannot be deemed to be an amenity plot.
55. ' If we go through the amenity plot as mentioned above then the plot No,9-B (suit plot) cannot be treated as an amenity plot, because it does not fall under any category of definition clause as mentioned above. Moreover, the plaintiffs themselves are not certain and sure that the sui plot is an amenity plot as it appears from para..7 page 5 of the plain wherein it is mentioned:-- "(ii) From the same it is obvious that the entire site when initially planned was dedicated for the sole purpose of an Ejector which may be classified as an amenity use or in the alternative would create a Customary Right as recognized by section 2 of the Easements Act, 1882 to use the same for that purpose."
56. ' The above discussion clearly shows that the plot in question is not the amenity plot.
57. ' Now the question whether C.D.G.K. Was/is competent to bifurcate the Plot No,9 into three categories and then subsequently, after bifurcation two Plots 9-A and 9-B can be sold in the auction. For this purpose relevant law and its section is 121 of S.L.G.O., 2001 which is in respect of ownership of immovable property and for better appreciation same is reproduced as under:-- "121. Ownership of immovable property.--- (1) Subject to any reservations made, or any conditions imposed by the Government, the property specified hereunder shall vest in the respective Local Government if it is vested in a Local Government through succession as provided in section 180.
(a) vested in a Local Government through succession as provided in section 180.
(b) Transferred to the Local Government by the Government or any other authority, organization or an individual; and
(c) Constructed or acquired by a Local Government with its title.
(2) The properties of the Government in possession of the Local Council established under Sindh Local Government Ordinance, 1979 (XII of 1979) shall pass on to their successors as provided in section 180 till varied by the Government.
(3) The successor Local Governments shall, subject to policy of the Government or contractual obligations, make bye-laws for the use development and management of the Local Government properties.
(4) The Government shall not, except with the prior consent of the Local Government concerned, reallocate or in any other manner divest title of properties vested in that Local Government under this Ordinance.
58. ' The section 180 of the S.L.G.O., 2001 speaks about the succession of properties, assets and liabilities which is reproduced as under:--- "180. Succession of the properties, assets and liabilities.--- (1) Subject to section 123, on commencement of this Ordinance,, the properties, assets and liabilities of the Local Councils, namely, Metropolitan Corporations, Municipal Corporations, District Councils, Municipal Committees, Town Committees, Union Councils under the Sindh Local Government Ordinance, 1979 (XII of 1979), shall be succeeded by the following Local Governments under this Ordinance:--
(a) City District Government in the case of Metropolitan Corporation of Municipal Corporation in the concerned City District, as the case may be;
(b) District Government in the case of District Council;
(c) Taluka Municipal Administration in the case of Municipal Corporations, Municipal Committees and Town Committees in the Taluka, as the case may be; and
(d) Union Administration in the case of Union Councils: ' Provided that the liabilities of the predecessor local governments shall be discharged in accordance with the existing arrangements: ' Provided further that the discharge of liabilities of the decentralized offices shall remain with the Government.
(2) The funds of a Metropolitan Corporation, Municipal Corporation, Zila Council, Municipal Committee, Town Committee and Union Council shall be transferred to a Local Government as its successor under subsection (1) above."
59. ' The above section clears that how the C.D.G.K. Succeeded the property of defunct K.M.C. And even otherwise admittedly there is no dispute that Plot No,9 was not belonging to the defunct K.M.C. Now the question arises whether succeeding the properties from K.M.C. And whether the C.D.G.K. Is competent to dispose of the same then there is section 124 of S.L.G.O., 2001 which empowers the C.D.G.K. And the same is reproduced as under:-- "124. Use and disposal of properties of local governments.--- (1) Properties of local governments shall be used only for public purpose.
(2) Immovable properties of local governments shall, subject to section 125, not be sold or permanently alienated: ' Provided that such properties may be given on lease through competitive bidding by public auction.
60. ' The movable property of a Local Government which is required to be disposed of, shall be sold through competitive bidding by public auction.
(4) All articles declared unserviceable shall be disposed of through competitive bidding by public auction.
61. ' As mentioned above for disposal of Local Government properties there should be a competent bidding by public auction. In the above Ordinance the procedure is also provided for public auction and it is not disputed that the plot in question has not been auctioned according to the rules and procedure provided for public auction.
62. ' There is an aspect which has come on record that in order to ascertain and to meet the contention of the learned counsel for the plaintiffs that the sewerage lines are underneath of suit plot wherein construction is being carried out which will ultimately collapse whole system of sewage as such by consent of parties Advocate this Court vide order, dated 25-2-2008 directed the Nazir to verify the sewerage line with the help of sketch by inspection of the site and also to verify whether lines are undergoing under the subject plot or not. Nazir in compliance of the above order, visited the site and submitted his report dated 12-3-2008 i,e, latest report prior to this the Nazir twice was appointed to inspect the site on some other point. However, the report shows that Nazir served the notice on the parties for inspection on 3-3-2008 at 2-00 p.m. The learned counsel for the plaintiff Qazi Majeed Ali, Advocate for defendant No,2 Karachi Water and Sewerage Board and Mr. Magsi A.C.P. Of K.B.C.A. And Amanullah defendant No,7 were present. But the said inspection on the request of the counsel for the plaintiffs was adjourned on 7-3-2008 at 3-00 p.m. And notice was also issued to the Town Nazim Saddar Town, Karachi and then on 7-3-2008 Nazir along with his staff member accompanied by Khursheed Jawaid, Advocate for plaintiffs, representative of plaintiffs and Mr. Amanullah defendant No,7 reached the Plot No,9-B suit plot. Mr. Abdul Majeed Executive Engineer Civil with Mr. Mohan Lal Sewerage and Pumping Division both of Karachi Water and Sewerage Board Mr. Muhammad Ashraf Majeed, Advocate for Karachi Water and Sewerage Board, Mr. S. Kamal Ahmed, D.D.O. (Auction LM-II) of C.D.G.K. And Mr. Mukhtar Hussain, T.M.O. Saddar Town, Karachi were present. The relevant portion of the inspection is reproduced as under:--
(4) Accordingly, the undersigned inspected the sewerage lines in presence of above-named persons and with the help of both engineers of KW&SB and found no sewerage lines are going under the subject plot. The said exercise was conducted after excavation of land and with the help of the sketch. The sketch also found to be correct showing the sewerage lines away from the plot in suit. However, fresh sketch also prepared by Executive Engineer Abdul Majeed (Civil) (E&M). Mohan Lal (Sewerage and Pumping Division) both of KW&SB), Mr. Mukhtar Hussain T.M.O. Saddar Town, Mr. S. Kamal Ahmed, D.D.O., Land Management II (Auction) C.D.G.K., and plaintiffs council showing the present position. The copy of said sketch is attached herewith."
63. ' The sketch attached with the report is also duly signed by Deputy District Officer Land Management-II, (Auction) City District Government Karachi, Advocate for plaintiffs Khursheed Jawaid Ahmed, Town Municipal Officer, Town Municipal Administration Saddar Karachi, Abdul Majeed Executive Engineer (E&M) Civil (Sewerage) KW&SB.
64. ' Plaintiffs did not dispute the above Nazir report which clearly establishes that the sewerage lines are not underneath of plot in question. It is also established that the Ejector is far away from the plot in suit.
65. ' There is another aspect apart from the above that admittedly Plot No,9 wherein some small portion the Ejector is functioning and C.D.G.K. After getting the ownership of the plot by virtue of law from the Local Municipality (defunct K.M.C.) created two plots i,e, Plots Nos.9-A and 9-B after leaving sufficient area for the Ejector for its expansion in the future, the two Plots 9-A and 9-B out of which 9-A was auctioned and it was purchased by giving highest bid by Messrs Muhammad Aslam Motiwalla son of Abdul Sattar and against that auction a lot of hue and cry was made by moving applications to the different authorities but no suit has been filed against the auction of Plot No,9-A and it was contended by the Advocate for defendants that the suit was not filed against them because those purchasers have made the demands of the plaintiffs. The suit has been filed against the present defendants Nos.7 and 8 who have purchased the plot from Saleem Deewan and Abdul Qadir who had purchased with much more high bid than the purchaser of the Plot No,9-A and the present defendants Nos.7 and 8 purchased the property and suit was lawfully and legally transferred to the defendants Nos.7 and 8 and when they started construction under the approved building plan by K.B.C.A. The suit has been filed, ' The first Nazir report, dated 16-4-2007 clearly speaks that eight shops were completed on ground floor. First floor flats were found complete; on second floor structure was found without partition walls, plaster and flooring. Third floor has only casted beams and 50% shuttering wood fixed. In the said report it is also clarified that the said building's staircase without plaster and protection walls and lift duct available which was without plaster. It is further clarified in the said report that the said plot belong to Karachi Metropolitan. The report also speaks that the Superintendent Engineer who was present at site stated that an abandon line of sewerage was passing under this plot, but the construction of a building is not affecting the Ejector System and same system is still in operation.
66. However, subsequent report of Nazir also falsified that any sewerage lines are underneath of the suit plot.
67. ' The citation AIR 1924 Pat. 706 relied by counsel for the defendants Nos.7 and 8 is also on the point that when plaintiff seeking a declaration from the Court. The Court ought to be satisfied that the plaintiff has an interest in the property in dispute for which the declaration is claimed which is a valid and subsisting interest.
68. ' For grant of interim injunction under Order XXXIX, rules 1 and 2, C.P.C., it is a settled law, the plaintiffs will have to establish that all the three basic ingredients i,e, prima facie case, balance of convenience and irreparable loss exist in their favour. Moreover, absence of anyone of these three ingredients shall disentitle the plaintiff for grant of interim injunction. Prima facie case means that the plaintiff should have an arguable case and there should be substantial material on record on the basis of which it could be said that the plaintiff is likely to succeed in the matter. In the present case the plaintiffs have failed to bring any document on record to establish their case that the subject plot is an amenity plot or that the plot does not belong to C.D.G.K. Or the K.B.C.A. Has approved the construction plan on Plot No,9-B in favour of defendants Nos.7 and 8 in violation of any rules and regulations of K.B.C.A., as such, they do not have a prima facie case.
69. ' All this above shows that the plaintiffs have no prima facie case nor they have any vested interest in the subject plot nor they have any balance of convenience in their favour nor any irreparable loss will be caused to them and all the three ingredients are in favour of the defendants Nos.7 and 8.
70. ' With utmost respect, the citations relied on by the learned counsel for the plaintiffs are not applicable to the facts of the present case.
71. ' In light of the above, the application under Order XXXIX, rules 1 and 2, C.P.C. Bearing C.M.A. No,2905 of 2007 stands dismissed and earlier interim order passed by this Court stands vacated.
72. ' Now let us take the application under Order VII, rule 11, C.P.C. Bearing C.M.A. No,799 of 2008 moved by K.B.C.A. Defendant No,3 in this case on the following grounds:--
(A) That the suit is hit and barred under sections 20 and 20-A of Sindh Building Control Ordinance (S.B.C.O.), 1979-1982.
(B) That the suit is premature as the plaintiff has not filed an appeal under section 16 of S.B.C.O., 1979-1982.
(C) That the suit is hit and barred under sections 42 and 56(d) of Specific Relief Act.
73. ' The learned counsel in support of his application has argued that the plaintiffs have rushed to this Court without complying the available legal formalities, such as to prefer an appeal before the authority before filing the above suit before this Court. The remedy could be available to them, if they were sincere or having any good case on their account, but their conduct shows that they rushed before this Honourable Court on a very premature stage just to pressurize K.B.C.A. For the sole object that they should not perform their legal duties in accordance with the Sindh Building Control Ordinance, 1979 and Karachi Building and Town Planning Regulations, 1982. He further contended that the plaintiffs allegation against the defendant is that they have approved the plan for construction submitted by the defendants Nos.7 and 8 in respect of Plot No,9-B which is approved by the K.B.C.A. In violation of S.B.C.O., 1979 and Karachi Building. And Town Planning Regulations, 1982. According to him the allegations are frivolous as plan was approved after observing all technical and legal formalities. Even then, if plaintiffs are aggrieved then they can file appeal as provided under section 16 of S.B.C.O., 1979 and then there is another section 17 which gives the procedure for disposal of the appeal but plaintiffs without exhausting that remedy straightaway came before this Court. His further contention is that there is also a legal bar for filing the suit against the defendant authority under section 20. He further contended that there is another important section 20-A of S.B.C.O., 1979 (as amended up to date) whereby no suit can be brought against defendant without statutory notice and lastly contended that in the suit plot they have no right nor their right has been infringed. Therefore, suit under section 42 of Specific Relief Act is not maintainable and there is no cause of action. He lastly contended that the plaintiffs who have sought the injunctions that too cannot be granted under section 56(d) of Specific Relief Act.
74. ' On this application the counsel for the-defendant No,1 C.D.G.K. Fully supported him and he contended that the suit as framed is not maintainable, as the plaintiffs are neither aggrieved persons nor they have any locus standi to file the subject suit against the legal action taken by the defendant-C.D.G.K. For disposal of their open land through open public auction according to the law and rules. Even plaintiffs are not residents of the area concerned in which the plot in question is situated and contended that the suit filed by them is not maintainable under the law. He lastly contended that the plaintiffs have no cause of action and no legal character under section 42 and under section 56(d) of Specific Relief Act they cannot challenge the legal action taken by the Government functionaries.
75. ' The counsel for the defendant No,2 i,e, Karachi Water and Sewerage Board did not say any word in their arguments regarding the contentions raised in the application under discussion.
76. ' The defendant No,4 is Government of Sindh and counsel for them in his arguments submitted that the suit is barred under section 42 of Specific Relief Act. The plaintiffs have no legal right or personal interest in the suit property which belong to C.D.G.K. And relief as prayed cannot be granted under section 42 of the Specific Relief Act. He lastly contended that the injunction application is liable to be dismissed as well as plaint is liable to be rejected.
77. ' The learned counsel for the defendants Nos.7 and 8 in respect of application under Order VII, rule 11, C.P.C. Contended that the suit filed by the plaintiffs is not maintainable and the plaint is liable to be rejected under Order VII, rule 11, C.P.C. And he supported the contention of K.B.C.A. That the suit cannot be brought for want of mandatory notice under section 20-A of Sindh Building Control Ordinance, 1979. His further contention is that the suit is barred under section 42 of the Specific Relief Act. In support of application for rejection of plaint he placed reliance on AIR 1935 Mad. 389 as well as 1984 CLC 2914 and on latest judgment of Single Judge of this Court in Suit No,258 of 2005 (Shahnaz Aftab v. Abdul Majeed and others). This judgment is also relied on by counsel for K.B.C.A.
78. ' The learned counsel for the plaintiffs opposed the application under Order VII, rule 11, C.P.C. And his first contention is that the subject suit has been moved in the public interest to prevent the illegal sale of property by the C.D.G.K. And other defendants. His further contention is that Karachi Water and Sewerage Board is unconditionally supporting the plaintiffs in the subject suit and as is obvious they are unable to bring the subject suit due to illegal external pressure being exerted upon them by the remaining defendants. He further contended that very application under Order VII, rule 11, C.P.C. Be dismissed as the defendants have not observed the rule 74 of Sindh Chief Court Rules as no affidavit has been attached with the application. He further contended in respect of locus standi in sections 42 and 56 of Specific Relief Act, 1877 that scope of locus standi to maintain a suit before this Court has been substantially changed in the last ten years since the promulgation of Constitution of Islamic Republic of Pakistan, 1973 and he placed reliance on 1999 SCMR page 2883, 1990 CLC page 83 relevant page 91. Then he further contended that the concept of locus standi has gone much changed in the public interest cases and relied on PLD 1994 SC 693.
79. He further contended that the concept of locus standi has been whittled down inasmuch as the expression "sufficient interest" inter alia, includes civic or (community) environmental or cultural interest and placed reliance on the following cases:--
(i) Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223,
(ii) Miss Benazir Bhutto v. Federation of Pakistan another PLD 1989 SC 416,
(iii) Mrs. Benazir Bhutto and another v. Federation of Pakistan and another PLD 1989 SC 66.
(iv) Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473,
(v) Al-Jehad Trust through Rasul Mujahideen Haibib-ul-Wahabb-ulKhairi and others v. Federation of Pakistan and others PLD 1996 SC 324,
(vi) Malik Asad Ali and others v. Federation of Pakistan through Secretary Law, Justice and Parliament Affairs, Islamabad and others PLD 198 SC 161,
(vii) Mohtarama Benazir Bhutto and another v. President of Pakistan and others PLD 1998 SC 388.
80. ' He further contended that sections 16, 20 and 20-A of Sindh Building Control Ordinance, 1979 as relied by Advocate for defendant No,3 in his application under Order VII, rule 11, C.P.C. To oust the jurisdiction of this Court to entertain the present suit. He further contended that no order has been passed by Karachi Building Control Authority under the provisions of Sindh Building Control Ordinance, 1979, hence this section is not attracted in the subject suit. In this regard, he placed reliance on the case of 1995 CLC 846. He further contended that the provisions of sections 20 and 20-A of Sindh Building Control Ordinance, 1979 have been repeatedly argued before this Court but in no case they succeeded and placed reliance on authority reported in 2001 YLR page 2542. He lastly contended that the defendants Nos.7 and 8 have relied the decision of a Division Bench relating to section 70 of Cooperative Societies Act, 1925 but they have not relied on any decision under section 16, 20 or 20-A of Sindh Building Control Ordinance, 1979, therefore, the above citations relied on by the defendants Nos.7 and 8 have no application. He lastly contended that the suit is filed reeking for mala fide on account of dispute going between the C.D.G.K. And the Karachi Water and Sewage Board on account of fact that the plaintiffs have specifically pleaded mala fide in the plaint, therefore, application under Order VII, rule 11, C.P.C. Is liable to be rejected.
81. ' This Court has given anxious thought to the contention raised by the parties counsel. At the outset the contention of plaintiffs has no force that the application under Order VII, rule 11 is not supported with any affidavit which is in violation of Rule 74 of Sindh Chief Court Rules, as such, same is liable to be dismissed. The application under Order VII, rule 11, C.P.C. Is purely moved on the ground that the present suit cannot be filed by the plaintiffs as they have no legal right or personal interest in the suit plot and the very suit is filed without exhausting the remedy and the declarations sought are barred under sections 42 and 56(d) of the Specific Relief Act. The suit is also hit under sections 20 and 20-A of the S.B.C.O., 1979-82 and suit is premature as the plaintiff has not filed any appeal under section 16 of S.B.C.O., 1979-82.
82. ' All the above grounds are legal grounds and as such no point of fact is involved and to this extent learned counsel for the K.B.C.A. Has filed a statement that his application under Order VII, rule 11, C.P.C. Contain only law point and not any fact is involved and moreover the same law point/objection have been raised in the written statement which is on oath and is on record which can be considered in support of his application.
83. ' Apart from the above, the law points can be raised without moving any application and it is always open for the Court and if the Court reaches to the conclusion that the very suit is barred under certain law then plaint can be rejected even suo motu without taking any application or affidavit from the defendants.
84. ' Now coming to the next contention, admittedly present suit which is for declaration, cancellation of documents and injunction is filed under section 42 of the Specific Relief Act, 1877 and plaintiffs counsel has rightly contended that the reliefs which he has sought in the plaint are out of scope of constitutional jurisdiction, as such, the bulk of citations relied which are all in constitutional petition and the same are not applicable to the facts of the case.
85. ' Moreover the plaintiffs realizing that he will not get the reliefs which he intend to have in the constitutional petition then he filed the present suit wherein also at the end of para.20 of the plaint it is clearly mentioned that all the facts and issues pertaining to the subject construction have been brought before this Court and are left with no other course other than to bring this suit in the public interest and in respect of public rights bring a representative suit which is not maintainable in a constitutional petition as the same involves many issues and disputed questions of fact.
86. Moreover, the learned counsel keeping in view of observation in a case of National Milkpak Ltd. v.
87. Sindh Institute of Urology PLD 2007 Kar. 11 where the plaintiffs/respondents locus standi to bring public interest litigation in a suit was contested by the appellants/defendants in respect of the bearing of an appeal of an injunction application where again the contention was raised that the plaintiff's suit is not maintainable under section 42 of the Specific Relief Act, 1877 then Division Bench of this Court rejected the argument with following observations:--- "The question of locus standi and personal grievance of the respondents Nos. 1 to 4 for bringing the cause before this Court by way of suit has also lost its significance in view of the fact that already steps have been taken in the suit to bring it within the ambit of Order I, Rule 8, C.P.C., i,e,, representative suit, and the controversies raised through this litigation, are also in the nature of public interest litigation, rather than confined to the interest of respondents Nos. 1 to 4/plaintiffs."
88. ' Keeping in view the above observation the learned counsel has raised the contention during arguments that his application under Order I, rule 8, C.P.C. Is pending and has not been disposed of. As such present suit be treated as representative suit. The record shows the suit was filed on 12- 4-2007 wherein also application under Order I, rule 8, C.P.C. Being C.M.A. No,2906 of 2007 was moved and it was disposed of by Deputy Registrar by directing the plaintiffs to issue notice by publication in two leading newspapers vide his order, dated 12-4-2007, but plaintiffs did not bother to deposit the process for issuance of the publication. Whereas Order I, rule 8(1), C.P.C. Clearly speaks "where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at the plaintiff's expense, notice of the institution of the suit to all such persons either by personal service or, wherefrom the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. Apart from this with the plaint the plaintiff has annexed the copy of the application said to be moved to the defendant authorities by the local residents but none of them become the plaintiff nor they have come forward in this suit. As such present suit with no angle of imagination can be said suit in public interest litigation.
89. ' Now let us see the section 42 of Specific Relief Act, 1877 under which the present suit is filed. This section is given in Chapter VI which is in respect of declaratory decrees and it reads as under:- "42. Discretion of Court as to declaration of status or right.--- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.
90. Bar to such declaration.--- Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than mere declaration of title, omits, to do so."
91. ' A bare reading of the above section clearly shows only that person can come under this section for having a discretionary of this Court to declare his status or right if he is entitled to any legal character or to any right as to any property then he can institute a suit against such person denying, or interested to deny, his title to such character or right then Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for further relief.
92. ' In the instant case, admittedly the plaintiffs have no legal character or right or interest in the question plot as neither they are owners nor they are lessors or occupants and in no sense their any right is infringed. The declaration sought by the plaintiffs is that Plot No,9,Ghulam Hussain Quarters, Karachi (out of which the plot in question was bifurcated) is solely property of Karachi Water and Sewerage Board who are independent legal entity and straightaway such declarations by plaintiffs cannot seek on behalf of the Karachi Water and Sewerage Board. Moreover, in the very suit Karachi Water and Sewerage Board is defendant No,2, though they have filed written statement as well as counter-affidavit to injunction application and nowhere they claimed that plot in question belonged to them. The correspondence which came on record between them and the C.D.G.K. Which has elaborately been discussed in the foregoing pages, the Karachi Water and Sewerage Board admitted that they have no title documents of the plot in question in their favour.
93. Thereafter, the contention of the plaintiffs that K.W&SB are unconditionally supporting the plaintiffs in the subject suit as they are unable to bring the subject suit due to illegal external pressure have absolutely no force.
94. ' In light of the above discussion, it is very clear that plaintiffs cannot bring the suit under section 42 of Specific Relief Act having no vested right in the question plot.
95. ' Apart from the above, the relief sought in the prayer clause also amounts to interference of public duties of concerned departments which cannot be granted under section 56(d) of Specific Relief Act, and the suit is also hit under section 56(d) of the Specific Relief Act.
96. ' Now let us see that the present application which is application under Order VII, rule 11, C.P.C..Is moved for rejection of the plaint for which the four grounds have been provided which are as under:- "Rejection of plaint.---The plaint shall be rejected in the following cases:---
(a) where it does not disclose a cause of action;
(b) where the relief claimed is under-valued and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law."
97. ' The grounds (b) and (c) are not question in the application whereas grounds (a) and (d) i,e, the plaint does not disclose any cause of action and the suit appears from the statement in the plaint to be barred by any law are raised. So far as the ground (a) is concerned it is already elaborately discussed while discussing the application for interim injunction under Order XXXIX, rules 1 and 2, C.P.C. That the plaintiffs having no vested interest, legal character or right and they have no prima facie case nor they have any cause of action to bring this suit whereas so far the ground (d) is concerned, let us see whether the present suit is hit or barred by law.
98. ' The plaintiffs in the plaint have specifically challenged the plan of construction submitted by defendants Nos.7 and 8 on the subject plot which, according to the plaintiffs, had been approved by the K.B.C.A. Against the rules and procedure and in violation of the Sindh Building Control Ordinance, 1979 and to this specific prayer has been made in the prayer clause "g" that the approved plan in respect of the construction on the subject property is in violation of sub-rule (1) of subsection (6) of the Sindh Building Control Ordinance, 1979 and is, as such, void and sought declaration for the above. The plaintiffs also sought relief that defendants jointly and severally to demolish all building works being carried out on the subject property. It is not disputed that plan for construction on the subject plot was submitted by defendants Nos.7 and 8 and same was approved by the K.B.C.A. Now if there was any violation in respect of the S.B.C.O., 1979, as per plaintiffs, then the very said Ordinance provide an appeal under rule 16 which reads as under;-- "16. Appeal.--- An appeal from an order under this Ordinance may, in the prescribed manner, be preferred within thirty days such order to:--
(a) Government in the case of the order made by the Authority; and
(b) The Authority, in other case."
99. ' Rule 17 also provides for disposal of application or appeal within thirty days of the receipt thereof.
100. Admittedly, the plaintiffs have not resorted this remedy and they straightaway jumped before this Court and this Court do not find any substance in the contention of the learned counsel for plaintiffs that they have not challenged any order of the K.B.C.A. Whereas the relief sought for declaration that plan approved in violation of section 6(1) of Sindh Building Control Ordinance, 1979 as. Well as relief of demolishing construction.
101. ' Similarly there is another rule provided in the S.B.C.O., 1979 i,e, section 20 which provides indemnity and that speaks as under:-- "20. Indemnity.--- No suit or legal proceedings shall lie against Government or the Authority or any person in respect of anything done or intended to be done in good faith under this Ordinance."
102. ' Apart from the above provisions, there is another rule which is 20-A which is also reproduced as under:-- "20-A. Notice for institution of suit.--- No suit shall be filed against the Authority or any of its employees in respect of anything done or purported to be done by the Authority or such employee under this Ordinance except after expiration of sixty days next after notice in writing has been delivered to or left at the office of the Authority or employees as the case may be."
103. ' The above rule clearly speaks rather it is mandatory in nature that no suit shall lie against the authority or any of its employees except after service of notice in writing and expiry of sixty days next after notice. In absence of such notice, the suit fails and is liable to be rejected and there are numerous authorities on this point and the learned counsel referred latest judgment delivered on 30-10-2007 by a Single Judge in Suit No,258 of 2005.
104. ' Apart from the above, in the instant case the Government is also made one of the defendants without serving the notice under section 80, C.P.C. Admittedly the plaintiffs in their plaint as well as the counter-affidavit to the injunction application and in the written arguments did not deny that they have not exhausted the remedy under rule 16 of the Sindh Building Control Ordinance, 1979.
105. They have also not denied that notice as required under section 20-A of the above rules was not served to the K.B.C.A. And for that matter the C.D.G.K. And the Government of Sindh and straightaway without exhausting the remedy under section 16 and without serving the required notices filed the present suit.
106. ' This Court do not find any force in the contention of the learned counsel that the above provisions have been argued repeatedly before this Court and till this date K.B.C.A. Has not been successful.
107. He placed reliance on the decision reported as Falaknaz Builders v. Karachi Building Control Authority 2001 YLR 2542 wherein the learned Single Judge examined the case of over 20 decisions and, inter alia, settled the proposition that the requirement to serve a notice under section 20-A is a mandatory. Accordingly, where a person files a suit without first serving notice under section 20-A the said suit would be barred under the law and it was further held that the above is the general rule and by way of exception a suit will still be maintainable despite non-service of statutory notice under section 20-A if the impugned actions are alleged in the suit to be mala fide, unlawful, illegal, unconstitutional taken in colourable exercise of power, without jurisdiction and in violation of natural justice. In the instant case though plaintiffs have made allegations of mala fide but without any substantial evidence and bare statement cannot be helpful to them and no mala fide is pinpointed except bald statement.
108. ' The decision relied by the Advocates for the defendants i,e, AIR 1935 Mad. 389 and in that case there are two plaintiffs and out of them one plaintiff served the required notice under section 80 and it was held that despite of ,serving notice by one plaintiff the whole suit is bad and plaint must be rejected and the plaintiff who had complied with the requirement under section 80 was not allowed to proceed with the suit. This, very citation relied in the judgment passed recently by this Court in Suit No,258 of 2005 where also the statutory notice as required under the Cooperative Societies Act i,e, under section 70 was not complied and the plaint was rejected.
109. ' Apart from the above, in the plaint in prayer clauses at prayer clause "e" plaintiffs have sought declaration that the construction on Plot No,9-B/1, GHK-1 Ghulam Hussain Kasim Quarters, Karachi will create a nuisance in respect of the area known as Kharadar. For such plea, one can file a suit under section 91, C.P.C. In respect of public nuisance which requires Advocate-General or two or more persons having obtained the consent in writing of the Advocate-General, may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case.
110. ' In the light of the above discussion it is crystal clear that plaintiffs have no legal character nor they have any legal right vested in subject suit and the very suit which cannot be filed under section 42 of the Specific Relief Act and also defeated by the section 56(d) of the Specific Relief Act. It is also crystal clear that plaintiffs have no cause of action to file present suit and very suit is barred under sections 16, 20 and 20-A of Sindh Building Control Ordinance, 1979 as well as under section 80 of Civil Procedure Code and plaint is liable to be rejected.
111. ' C.M.A. No,799 of 2008 application under Order VII, rule 11, C.P.C. Stands allowed and the plaint is rejected.
112. ' On the basis of the elaborate discussion made while disposing of the above two applications i,e, application under Order XXXIX, rules 1 and 2, C.P.C. And the application under Order VII, rule 11, C.P.C.
113. It is also crystal clear that the present suit is filed on false grounds and it amounts to frivolous litigation which is alarming situation as at one hand it caused mental torture and agony to the defendants who at the same time incurred sufficient financial expenditures over such baseless litigation and on the other hand it also wasted valuable time of the Courts and increased the load of work of the Court as such under these circumstances, the litigant parties like present one are liable to be discouraged. As such, the defendants are rewarded special compensatory cost of Rs,10,00,000 (Rupees ten lac only) which is to be equally distributed amongst the defendants, except defendants Nos.5, 6 and 9, who did not turn up to contest the matter.