' KHALID ALI Z. QAZI, J.---By this common order I propose to dispose of C.M.A. No,2783 of 2006 in Suit No,465/2006 and C.M.A. No,4276 of 2006 in Suit No, 724 of 2006 both under Order XXXIX, rules 1 and 2, C.P.C. Filed by the plaintiffs seeking restraining orders against defendants from raising the construction till final decision of both suits on Plots Nos.218 and 185/1 Garden East Karachi, respectively.
' Brief facts of the case requisite for disposal of these applications are that in Suit No,465 of 2006 plaintiff No,1 is resident of 224/2 Garden East Karachi, plaintiff No,2 is resident of 293 Cruz Road Garden East Karachi and plaintiff No,3 is resident of 65 Chestnut Street, Garden East Karachi and in Suit No 724 of 2006 plaintiffs Nos.1 and 2 are residents of plot GRE-185 Emerald Street Garden East, are all the owners or residents of property located in an area notified under the Sindh Town Planning Act, 1915 as Garden Quarters, Karachi.
' In Suit No, 465 of 2006 the defendants Nos.1 and 2 are the joint owners of the Plot No,218 Garden East Garden Quarters, Karachi and in Suit No,724 of 2006 defendant No,1 is owner of plot No,185/1 Garden East Karachi who are constructing a structure on the subject property allegedly in violation of law.
' The defendant No,3 in Suit No,465 of 2006 and defendant No,2 in Suit No,724 of 2006 is the City District Government Karachi operating under the provisions of the Sindh Local Government Ordinance, 2001 and is the authority appointed under the Sindh Town Planning Act, 1915 to carry out all the actions under the provisions of said Act.
' The defendant No,4 in Suit No,465 of 2006 and defendant No,3 in Suit No,724/2006 is the authority appointed under section 4 of the Sindh Buildings Control Ordinance, 1979 and is responsible under the Sindh Buildings Control Ordinance, 1979 for the buildings control within the. Province of Sindh.
' The defendants No,5 in Suit No,465 of 2006 and defendant No,4 in Suit No 724/06 is the Government of Sindh who are the lessors of the subject property and overall responsible for town planning within the Province of Sindh. The defendant No,5 has under the provisions of the Sindh Town Planning Act, 1915 delegated the functions of Town Planning within the area known as Garden Quarters to the defendant No,3 under the provisions of the Sindh Town Planning Act, 1915.
' That the defendants Nos. 6, 7 and 8 are responsible for the provision of amenities i.e, electricity, water and sewerage and natural gas for the city of Karachi.
' That the defendant No,9 is responsible for the registration of all documents in respect of the transferring of an interest in immoveable property in Karachi.
2. In support of injunction application in Suit No, 465/06 plaintiff No,3 Ishrat Alvi filed his affidavit on 17-4-2006 in reply Amir Ali Pabani filed counter affidavit as attorney of defendants Nos.1 and 2 on 3-5-2006. The plaintiff No,3 also filed rejoinder to the counter-affidavit filed by Amir Ali Pabani.
Mr.Mushtaq Ibrahim Soomro, Deputy Controller Building KBCA filed counter affidavit on 23-5-2006.
3. In support of C.M.A. No,4276 of 2006 in Suit No,724 of 2006, the plaintiff No,1 filed affidavit on 29-5- 2006. In reply Tahir Nisar Deputy Controller KBCA filed counter affidavit on 9-9-2006 and Zakaria Usmani filed his counter affidavit on behalf of defendants Nos.1 and 9. Plaintiff No,1 filed rejoinder to counter affidavit of defendants Nos.1 and 9 on 29-9-2007. The defendant KBCA and private defendants also filed their written statements on 26-9-2007.
4. Mr. Abdur Rehman learned counsel for the plaintiff contended that the plaintiffs reside in an area that was planned by the Karachi Municipal Corporation learned counsel further states that the predecessor-in-interest of the defendant No,1 under the Sindh Town Planning Act,1915 and was notified in the Bombay Government Gazette. Learned counsel stated that annexure C/1 is a copy of the Form of Lease for Built on Plots, Garden Quarter and Annexure C/2 is a copy of the document drawing up the Final Scheme as required under the Sindh Town Planning Act, 1915 and Annexure C/3 is a circular dated 29 July, 1938 clarifying that only a ground 1 structure was permitted, in the whole of Garden Quarters. Learned counsel states that Annexure C/4 is a notification of the Deputy Commissioner South dated 1st September, 1988 which again confirms that no structure greater than ground +1 could be raised in the entire area of Garden Quarters. Learned counsel contended that the documents marked Annexure C/4 clarified in the final scheme which reads as under:-
6. The maximum area on which buildings may be erected shall be one- fourth of the entire plot.
7. Out Lawrence Road from Pad Shah Road to Moorad Khan Lane Buildings upto a depth of 35 feet shall be allowed to build on the alignment line of the road fixed by the Municipality on all other roads no building or portion of a building other than compound walls or entrance gates shall be erected within 15 feet of the boundary. In case of plots having more than one frontage the 15 feet shall apply on the main road or the more important road . The minimum distance from the other boundaries of the plot to the building line shall be at least 10 feet.
8. No building other than Dwelling Houses with appurtenances thereto shall be erected within this area provided that the Local Authority may permit shops on roads of 50 feet width and above.
5. Learned counsel stated that notwithstanding that which is stated in para. 11 of the plaint the defendants Nos.3, 4 and 5 have jointly and severally have approved a plan for construction of 4 storeys on the subject property. Learned counsel submitted that in this regard it may be mentioned that the defendants have managed to obtain an approved plan of the building to be raised on the subject property which discloses a structure of basement (for car parking) and ground 3 storeyed building structure to be erected on the entire plot in direct conflict with the provisions of the Sindh Town Planning Act, 1915. The annexure D is a copy of the approved plan indicating the construction to be raised on the subject property.
6. The plaintiffs have shown a photograph of the building as Annexure of the current construction on the subject property in March, 2006.
7. Learned counsel states that it may be noted that the approved plan has been illegally issued by the defendant No,4 as it fails to comply with the provisions of the Karachi Buildings and Town Planning Regulations 2002 as per Regulation. 25-4 FLAT SITES CATEGORY which reads as under: SR. NOFOOT PRINTF.A.RMINIMUM COS FRONTMINIMUM COS SIDESMINIMUM COS REAR
1. 40% 1:2.7520ft(6M) 20ft.(6m) 20ft.(6m)
8. Learned counsel stated that Regulation 25-4 prescribed a minimum Compulsory Open Space(COS) of 20 Feet on all sides whereas as per the plan approved by the defendant No,3,7 Feet COS has been left on either side, 10 Feet at the back and 15 feet in the front. As such the plan having been issued by the authority in violation of the Karachi Buildings. Control and Town Planning Regulations, 2002 is ultra vires and void. Learned counsel stated that Regulation 24-2.4- Detailed plan clearly showing entry, exit gradient of ramp, turning radius, storage spaces, circulation and movement of vehicles etc. Shall be submitted.
9. Mr. Abdur Rehman learned counsel for the plaintiffs stated that no details of the parking have been provided on the subject property the subject plan has been approved by the defendant No,4.
Learned counsel further states that needless to say that no such plan has been submitted to the defendants Nos.4 and 5 and nevertheless the plan for the Building stands as approved. Learned counsel urged that Regulation 24-2.5 16 % of the total car parking space will be utilized to -provide space for Motorcycle parking @ 6 Motorcycles and 8 bicycles for every one car. It is stated that no details for motor cycle parking have been provided in the plan whatsoever.
' Learned counsel stated that Regulation 24-6.1 Configuration of parking space under these Regulations shall conform to the minimum standards give which reads as under:-- Table -- 24.1 DESCRIPTION FOR CARFOR MOTOR CYCLE Bay width 8ft.(2:43m) 2.5ft.(0.75m)
Bay length 16ft.(4.86m) 6ft(1.8m)
Gradient of ramp* 1:7.5 1:8.5 Straight Turning radius (outer) Helical length Turning radius Lot Turning radius24ft.(7.3m) 32ft.(9.7m)
17.5ft.(5.3m)
Minimum Ramp and Drive way width Two way traffic 18ft.(5.5m)
One-way traffic. 11ft.(3.4m)
As per Table-24.2 Angle of ParkingStall WidthStall LengthKerb Length Per car ft (degrees) Ft Ft 0=along kerb 8(2.4m)19(5.8m) 19(5.8m)
30 8(2.4m)16(4.9m) 18(5.5m)
45 8(2.4m)16(4.9m) 17(5.2m)
60 8(2.4m)16(4.9m) 15(4.6m)
90 8(2.4m)16(4.9m) 8(2.4m)
Stall DepthMin one way driveway WidthLot width how +1 Driveway ft.Lot Width 2 rows +1 driveway Ft.
Ft Ft 8(2.4m) 11.5(3:5m) 19.5(6.0m) 27.5(8.4m)
15(4.6m)12(3.7m) 27(8.2m) 42(12.8m)
17(5.2m)12(3.7m) 29(8.8m) 46(14.0m)
18(5.5m)21(6.4m) 39(11.9m) 57(17.4m)
160.9m) 25(7.6m) 41(12.5m) 57(17.4m)
' Learned counsel stated that it may be noted that the defendant No,4 has approved the subject plan illegally as no indication of (i) the bay width or the bay length of the cars is indicated.
(ii) no measurements are given as to the width of the driveway in 'respect of one way traffic.
(iii) no gradient measurements have seen given in respect of the ramp.
' E. Regulation 3-3.1.1 ' Unless there is anything repugnant in the subject or context, or unless otherwise provided in these Regulations, land development... Or the ..Development of land.. Shall include the dividing of land into plots, the amalgamation of plots, infrastructure development operations in on over or under land making of any material change in the use of land and the creation or termination of rights or access. 3-3.1.2. The following activities or uses shall be taken for the purposes of these Regulations to involve land development as defined herein unless expressly excluded by these Regulations :- (a)...
(b) A material increase in the intensity of use of land such as an increase in the number of business manufacturing establishment offices or dwelling units in any structure or on land:-
(g) Departure from the normal use for which development permission has been granted or failure to comply with the conditions of a regulation or an order granting the development permission under which the development was commenced or is continued .
3-3.2. General Requirements for Development Permission ' No person or group of persons may carry out land development or permit land development without a valid development permit. The land development shall be in compliance with the requirements, restrictions or conditions of: 3-3.2.1 these Regulations: 3-3.2.2 any applicable detailed plan: 3-3,2.3 any applicable general standards and area standards: 3-3.2.4 any applicable land grant:
10. It is further contended by Mr.Abdur Rehman that as per Regulation 3-3.4 or 3-3.5 Special Development Permits may be granted by the defendant No,2 Mp & Ecd Department provided that the same are not in violation of 3-3.2.2 or 3-3.2.3 or 3-3.2.4
11. Learned counsel stated that the conditions of the area being prescribed as per the Sindh Town Planning Act of 1915 and there being an increase in the material use of land by the construction of Dwelling units, and no such approval having been accorded by the Mp & Ecd Department the entire construction having been constructed without approval, the approved plan issued by the defendant No,4 is ultra vires and void.
12. Learned counsel submitted the defendants Nos.3, 4 and 5 are jointly and severally attempting to vary the town planning conditions incorporated in the form of a restrictive covenant contained in the lease of the plaintiffs in violation of law and any construction on the subject property on such a basis is ultra vires and void ab intio.
13. Learned counsel urged that the plaintiffs have acquired a vested right to insure that any variation of the area known as Garden Quarter is at all times done in consistency with the provisions of the Sindh Town Planning Act, 1915 which vested right cannot be taken away except in the manner prescribed by law.
14. Learned counsel contended that without prejudice to paragraph Nos. 19 and 20 the defendants Nos.3, 4 and 5 have jointly and severally altered or varied the town planning conditions of the subject property without complying with the doctrine of structured discretion as clarified by the Hon'ble Supreme Court of Pakistan whereby an authority acting must insure that any decisions made by it are made pursuant to:
(i) open plans
(ii) open policy statements
(iii) open rules (iv)open findings
(v) open reasons
(vi) open precedents and
(vii) fair informal procedure
15. Learned counsel urged that the variations of the town planning conditions being made by the defendant No,2 without complying with the doctrine of structured discretion renders the decision, of the defendant No,2 to vary such conditions as ultra vires and void and any action permitting the construction on the subject property on the basis of such decision of the defendant No 2 is also ultra vires and void.
16. Learned counsel contended that the variation of the town planning conditions jointly or severally being made by the defendants Nos.2, 3, 4, 5 and 6 without complying with the rules of natural justice renders the decision of the defendants Nos. 3, 4 and 5 to vary such conditions as ultra vires and void and any action permitting the construction on the subject property on the basis of such decision of the defendants Nos.2, 3, 4, 5 and 6 is also ultra vires and void.
17. Learned counsel for the plaintiff stated that the decision of the defendants Nos.3, 4 and 5 to vary the town planning conditions is in violation of Article of the Constitution of the Islamic Republic of Pakistan 1973 and is ultra vires and void.
18. Learned counsel urged' that the decision of the defendants Nos.3, 4 and 5 to vary the Town Planning Conditions is in violation of Article 14 of the Constitution of the Islamic Republic of Pakistan 1973 and is ultra vires and void.
19. Learned counsel contended that the decision of the defendants Nos.3, 4 and 5 to vary the Town Planning Conditions as contained in the lease is in violation of Articles 23 and 24 of the Constitution of the Islamic Republic of Pakistan, 1973 and is ultra vires and void.
20. Learned counsel stated that the decision of the defendants Nos. 3, 4 and 5 to vary the Town Planning Conditions as contained in the lease is discriminatory and unreasonable and in violation of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 and is ultra vires and void.
21. Learned counsel contended that the plaintiffs have a legitimate expectation in insuring that no variation occurs to the town planning scheme which legitimate expectation was violated by the defendants Nos.3, 4 and 5 rendering the decision of the defendants Nos.3, 4 and 5 to vary the town planning conditions of the subject property as ultra vires and void.
22. Learned counsel urged that the defendant No,2 is estopped under the doctrine of proprietary estoppeal from varying the town planning conditions contained in the form of restrictive covenants in the leases executed by the defendant No, 6 in favour of the plaintiffs.
23. Mr. Abdur Rehman learned counsel for the plaintiff also stated that the illegal construction of a multistoreyed building in violation of the terms of the Sindh Town Planning Act, 1915 is tortuous wrong of nuisance and infringement of easementary entitlements. The impugned construction is blatant violations of the terms and conditions of the lease and land grant, and would further increase the strain on sewerage, water, electricity infrastructure facilities and municipal services, which are already scarce for the residents of the area. Learned counsel further stated that such construction shall cause hindrance, congestion, water shortage, sewerage and electricity breakdown. It will also create the unhygienic conditions, obstructions and immense traffic and parking problems. Learned counsel states that moreover the impugned conversion and/or construction shall, constitute several forms of nuisance such as noise, foul smell, pollution of the atmosphere and injury correlative to the properties and interference with its use. Learned counsel further stated that in such circumstances, the peace and tranquility of the low density residential area along with its amenities as well as right of the plaintiffs to the use and peaceful enjoyment of their property in a low density area, is threatened. Learned counsel stated that the right of the neighborhood to the privacy, peaceful enjoyment of their respective residential properties is jeopardized for which the plaintiffs are presently suffering a special loss; which at the present conservative estimate would be over Rs,10 million, in view of noise and dust, constantly being caused and reduction in amenities and in the value of the property.
24. In support of his above argument Mr. Abdur Rehman has referred the following case laws:-
(1) 1979 CLC 252; (2) PLD 1982 Karachi 425 rel. 431 paras.7, 8, 9 & 10; (3) PLD 1971 SC 61; (4) PLD 1958 SC 104; (5) PLD 1994 SC 512; (6) PLD 2002 Kar.405; (7) PLD 1993 SC 109; (8) 1993 SCMR 1635; (9) 2006'
YLR 2537; (20 sic) Unreported judgment in C.P. No, 549 of 1997 paras. 13 & 16; (21) 1986 CLC 1408; (22)
PLD 1996 SC 365; (23) 2001 YLR 1139; (24) Unreported judgment passed in Suit No 860 of 2005; (25)
PLD 1959 SC 550; (26) PLD 1981 SC 377; (27) PLD 1981 SC 370; (28) 2006 YLR 2537;
(29) PLD 1993 SC 631 and (30) 1998 SCMR 1618.
' The above cases are different and distinguishable on the simple reason that in present case Nishter Road has already been declared as commercial road and more than 144 high-rise buildings have already been constructed in the vicinity most of these buildings have not even observed, compulsory open spaces and the plaintiffs have taken no action in respect of other more than 144 high- rise buildings.
25. Mr. Mansoor-ul-Arfin learned counsel for the defendants Nos.1 and 2 in Suit No,465 of 2006 in reply to the arguments of Mr.Abdur Rehman has advanced his arguments.
26. Learned counsel stated that Ishrat Alvi is not the owner of Bungalow No 65, Chestnut Street Garden East, Karachi. The owner of this bungalow has not chosen to come forward as plaintiff.
27. Learned counsel stated that the plaintiffs Nos. Land 2 have not disclosed if they are the owners respectively of Bungalow Nos.224/2 and 293, Garden East, Karachi or merely residents. The plaintiffs have no right to file the suit.
28. Learned counsel stated that it is clear that the plaintiffs Nos. Land 2 have not instructed filing of the application under Order XXXIX, Rules 1 and 2 as it is clear from para 2 of the affidavit.
29. Learned counsel stated that the defendants Nos.1 and 2 are constructing the structure according to the Buildings Control and Town Planning Regulations 2002 and the KBCA Control Ordinance, 1979 which provide regularization of the plans in case there has been any regularisable deviation from the approved plan. The defendants Nos.1 and 2 have not deviated from the compulsory open spaces as approved in the plans by defendant No,4 such report has also been filed by the Nazir of this Honble Court.
30. Learned counsel contended that the construction is in accordance with the Karachi Buildings Control and Town Planning Regulations 2002. As far as Sindh Town Planning Act, 1915 is concerned the same does not apply any more. Learned counsel further stated that the Sindh Town Planning Act, 1915 is no more applicable and the same is obsolete. Learned counsel stated that at the time that the said Act was promulgated the population of Karachi must have been hardly around 100,000. Now the population of Karachi is at minimum 14 (M).
31. Mr. Mansoor-ul-Arfin learned counsel contended that the plaintiffs have concealed the fact that a number of buildings in Garden East Area consist of Ground + 4 some of them Ground + 5, some have pent houses, some have basements also, some are Ground+ 6,Ground +7 and Ground + 8.
Some of the residential plots have been used for construction of the shops on the ground floor as well as high-rise buildings. Learned counsel states that although there are more high rise buildings, but those which are in the knowledge of defendants Nos.1 and 2 (No,144) are shown in the plan which is explained as under:
(a) Violet colour is of those residential plots which carry Ground +4, Ground +5, Ground+ 6, Ground+ 7, or Ground +8, buildings.
(b) The plot of the defendants Nos. 1 and 2 is marked in orange.
(c) The plot where the plaintiff No,3 is residing is being No,65 is coloured yellow, on the back of which there are three plots Nos.76,77 and 78 pointed out by green and where Ground+8 construction is being carried on. The plaintiffs have allowed and/ or not objected to the amalgamation of those plots.
(d) Plaintiff No,2's residence has been shown as 224/2 also marked yellow and it will be noticed that across the road and in front of this, plaintiff's residence there is high rise building on plots Nos.231/1 and 231/2. The building on plot No,231/1 consists of Ground+4 and the building on plot No,231/2 consists of Ground+3. The plaintiffs have acquiesced in such constructions. These buildings have also covered the open spaces and perhaps the COS.
(e) The plaintiff No, 2 has given his address as No,293.1n the vicinity and very near to this building, there are high rise buildings 231/1, 231/2 233/3, 233/6, 233/7,289 and 290. The plaintiffs did not object to the construction of all these high rise buildings and they have acquiesced and waived all their rights, if any in this respect. Interestingly, on the plots on the right and on the left of the plots of the defendants Nos.1 and 2 high-rise buildings have been constructed on plots Nos.216,217 and 220. Plot No,220 is Ground +4 and 216 has basement -I- Ground +4 and pent- house and 217 is Ground+4.It is not known as to why none of the plaintiffs objected to the construction of these high rise buildings.
32. Learned counsel stated that the plaintiffs are contending that because of the building of the defendants Nos.1 and 2 entire area is being destroyed. They have not explained as to why the entire area has not been destroyed by earlier 144 high-rise buildings in Garden East, although the defendants Nos.1 and 2 do not admit these allegations of the plaintiffs. Learned counsel denied that the plaintiffs have any prime facie case. Learned counsel further denied that the construction is being carried on in violation of any law.
33. Learned counsel stated that the plaintiffs have failed to explain as to what happened to the balance of convenience which they allegedly claim is in their favour, when all the above 144 high rise buildings mentioned above had been constructed. Learned counsel stated that most of these buildings have not even observed COS. The allegations of running away of the defendants is denied. Learned counsel stated that the defendant No, l's residential address is 13/B Fidai Cooperative Housing Society Garden East. However the defendant No, 2 is living m Clifton.
34. Learned counsel stated the application under Order XXXIX Rules 1 and 2 is mala fide, without any basis and harassm ent to the defendants Nos.1 and 2 and is liable to be dismissed.
35. Learned counsel stated that the defendants Nos.1 and 2 are joint owners of plot No,218 Garden East Quarters, Karachi. However learned counsel denied that. All structure on the subject property is in violation of any law or the Town Planning Regulations 2002. As far as the Sindh Town Planning Act, 1915 is concerned; the same is no more applicable. The conditions of the city have changed tremendously over the last 94 years and the town planning had been done and is being done and the construction of the buildings are regulated under the Sindh Buildings Control Ordinance,1979 and the Town Planning Regulations 2002. Sindh Town Planning Act, 1915 is no more applicable. The question of defendant No,3's authority under the Sindh Town Planning Act,1915 does not arise.
36. Mr. Mansoor-ul- Arfin learned counsel denied that delegation of functions of town planning have been entrusted to defendant No,2. Learned counsel states now the town planning is entrusted to the Karachi Building Control Authority under the Sindh Buildings Control Ordinance, 1979, Sindh Town Planning Act, 1915 is no more applicable.
37. Learned counsel submitted that the defendants Nos. 5 to 9 have been unnecessarily joined in order to pressurize the defendants Nos.1 and 2 and these parties are liable to be struck off from the plaint.
38. Learned counsel stated that there are different Registrars for different areas for registration of the sale-deed etc. Learned counsel denied that the defendant No,9 is the proper authority.
39. Learned counsel denied that the plaintiff resides in the Garden Quarters. As far as the lease is concerned, it is not known whether the same lease is applicable to all the plots in Garden East Quarters as has been filed by the plaintiff. The plaintiffs have not filed leases, if any.
40. Learned counsel states that as far as Annexure C/2 is concerned, it is merely an award of the arbitrator under the Sindh Town Planning Act, 1915. It is submitted that the arbitrator has exceeded the powers which were conferred by Section 30 of the Sindh Town Planning Act, 1915 in any case this position has since changed and now Sindh Buildings Control Ordinance, 1979 and the regulations framed thereunder are applicable.
41. Learned counsel stated as far as 'Annexure C/13 is concerned, it is no more applicable as the law which is applicable is the Sindh Buildings Control Ordinance, 1979 and the regulations made thereunder.
42. Learned counsel further stated that as far as Annexure C/4 is concerned it is not known as to under what law the notification dated. 1-9-1988 has been issued by the Deputy Commissioner South Karachi. Learned counsel further states even in Civil Lines area, the buildings. Ground-1-8 have been constructed. The notification is void being against the Sindh Buildings Control Ordinance, 1979 and the Town Planning Regulations. Learned counsel stated that without prejudice it is not shown by the plaintiffs as to why they did not have this notification applied and the applicability of which by the defendants to the other 144 buildings which are mentioned in Annexures D/1 and D/2 with this counter affidavit. Learned counsel stated that Annexure C/4 has wrongly been mentioned in para 11 of the plaint.
' Learned counsel stated that in fact C/2. This scheme is no more applicable in view of Sindh Buildings Control Ordinance,1979 and the regulations made thereunder.
43. Learned counsel stated that plans in respect of the buildings of the defendants Nos.1 and 2 have been approved under the Sindh Buildings Control Ordinance, 1979 and the Karachi Buildings and Town Planning Regulations 2002. Learned counsel stated that all the other building plans in respect of the buildings constructed after 1979 have been approved by the defendant No,4.
Learned counsel denied that the Sindh Town Planning Act, 1915 is applicable. As far as the plan annexure D is concerned regularization plan has already been filed.
44. Learned counsel stated that construction of the building of defendants Nos.1 and 2 started in July, 2005 which was to the full knowledge of everyone openly and manifestly, but nobody raised any objection. Learned counsel stated ' that after the building has attained the completion of structure the plaintiffs have come forward with the mala fide intentions by filing the present suit.
45. Learned counsel stated that the plaintiffs cannot blow hot and cold in the same breath.
Sometimes they say that the scheme prepared under the Sindh Town Planning Act,1915 is applicable and sometimes, they say that the Karachi Buildings and Town Planning Regulations 2002 are applicable.
46. Learned counsel stated that plaintiffs have wrongly cited Regulation 254 which relates to the designated flat site. Learned counsel stated that it is not applicable to the plot of defendants Nos.1 and 2. Learned counsel stated that the compulsory open spaces as mentioned in the approved plan have been approved under the relevant regulations and have been maintained. Nazir of this Hon, ble Court has also reported that these have been maintained.
47. Learned counsel urged that as far as regulations in sub-paras. B, C and D are concerned all have been complied with for which reasons, plans have been approved and regulation 24-2-4 is concerned egress and ingress have been clearly shown in the approved plan. The total width of the ramp was 18ft originally but not it is 21 ft. In the regularization plan. Half of its is ingress and half of it is egress. Learned counsel stated that in any case the Nazir of this Court has reported that the basement is according to the approved plan.
48. Learned counsel stated that Regulation 3-3-1.1 does not apply at all. It is not the question of land development as the defendants Nos.1 and 2 are not developing the land but they are constructing on already developed land and regulation 3-3-2 and other regulations mentioned in the plaint do not apply. It is submitted that the Sindh Town Planning Act, 1915 is no more applicable and the construction on the building is in accordance with the 1979 Ordinance and Town Planning Regulations 2002.
49. Learned counsel contended that as far as enforcement of the covenants in the lease are concerned it is a matter between the lessee and the lessor and the plaintiffs have nothing to do with the same and cannot enforce the same. Learned counsel denied that construction of property is ultra wires and void ab inito.
50. Mr. Mansoor-ul-Arfin learned counsel urged that defendants Nos.1 and 2 have already filed the list of the plots which buildings are admittedly more than Ground +4, 5, 6, 7 and. 8 floors have been constructed. Learned counsel stated that if as alleged or at all the plaintiffs have any vested right the same has been given up and waived and Sindh Town Planning Act 1915 does not apply.
51. Learned counsel stated that in any case the defendants have not taken any decision of construction or otherwise which is being criticized by the plaintiffs.
52. Learned counsel stated that whatever has been constructed or will be constructed will be strictly in accordance with the law i.e, Sindh. Buildings Control Ordinance 1979 and Town Planning Regulations 2002 and the approved and regularized plans.
53. Learned counsel urged that the lease conditions if any are for the enforcement or otherwise for the lessor and not for the plaintiff learned counsel stated that in any .Case all alleged lease conditions stand waived by the plaintiffs on account of construction of 144 high rise buildings in Garden East in respect of which the plaintiffs did not raise any objection.
54. Learned counsel contended that as much as easementary, entitlements and rights are concerned it is not understood as to why the plaintiffs have not taken action, specially in respect of the Ground +8 building being constructed on Plots Nos.76, 77 and 78 now amalgamated is just behind the residence of the plaintiff No,3 further since the residences of the plaintiffs are not adjacent to the plots of the defendants, no easementary rights of the plaintiffs, if any are or will be affected by the building of the defendants Nos.1 and 2. Learned counsel urged that as far the alleged conditions of the lease are concerned it is between the defendants and lessor with which the plaintiffs have nothing to do and allegations of increasing the strain on sewerage, water electricity infrastructure facilities and municipal services are concerned there is no shortage in Garden East. Learned counsel further urged that as far as unhygienic conditions, obstructions and immense traffic and parking problems are concerned these are all imaginary. Learned counsel further urged that as to why these things have not been noticed by the plaintiffs in respect of more than 142 buildings in the same area has not been explained by the plaintiffs. The plaintiffs are living far away from the building of defendants Nos.1 and 2 further on the right and left on the defendants plot there are already high rise constructions.
55. Learned counsel stated that the principle of estoppel is applicable to the plaintiffs and learned counsel denied that the defendants Nos.1 and 2 have anything to do with the alleged restrictive conditions in the alleged leases, if any in favour of the plaintiffs.
56. Learned counsel stated that as to how the plaintiffs are suffering special loss of Rs,10.00 (m) has not been explained and it is not explained as to how the defendants Nos.1 and 2 are responsible for this in view of already constructed high-rise buildings on more than 100 plots and in view of the fact that on 27000 sq.Yds. Of land Ground+8 construction is being raised behind the residence of plaintiff No,3 and in the open space of the residence of the plaintiff No, 3 some structure has illegally been constructed.
57. In support of his arguments Mr. Mansoor-ul-Arfin has referred the following case laws:-
(i) 2006 YLR 2537; (ii) PLD 1982 Kar.245 para 10 at page 433; (iii) PLD 1976 SC 435; (iv) SBLR 2007 SC 88; (v) PLD 2007 SC 427; (vi) PLD 1968 Kar.222 and (vii) PLD 2003 SC 345.
58. Mr. Kamal Azfar learned counsel for the defendants Nos.1 and 9 in Suit No,724 of 2006 controverted the arguments of Mr. Abdur .Rehman learned counsel for the plaintiffs and also filed written arguments as well.
59. Mr. Kamal Azfar learned counsel stated that defendant is the legal owner/title holder of the suit property by virtue of the sale-deed dated 31.3.2006 duly registered in favour of the defendant with the sub-Registrar T-Division VI-B Karachi, and on the strength of the General Power of Attorney in defendant's favour by the previous owner of the suit property namely Tariq Mumtaz son of Mumtaz , which too was duly registered with the sub-Registrar T Division VI-B Karachi vide Registration No, 324 Book No, 4 dated 20-7-2005 M. F. Roll No,U-78747/2798, photo Registrar Karachi dated 22-8- 2005.
60. Learned counsel stated that the law relevant for the purposes of the subject plot is the Sindh Buildings Control Ordinance 1979, as amended up to date and the Karachi Buildings and Town Planning Regulations 2002. The construction of the structure on the said property is in no manner illegal or in collusion with the defendants Nos.2, 3 and 4. Learned counsel further stated that the construction on the Suit Property has been undertaken by his client in complete accordance with the approved building plan and the entire process has been carried out with requisite sanctions approvals and permission of the relevant authorities, including KBCA in terms of the relevant laws.
The buildings plan in respect of the subject property was scrutinized by KBCA and such is duly reflected in the letter dated 6-8-2005. Subsequently the revised plan was duly approved by KBCA vide their letter dated 24-9-2005. Before the approval of the revised plan the Plumbing and Electrical plans were also duly approved by the Environmental and Utilities section of KBCA vide their letter dated 15-8-2005. The Town Municipal Administration Jamshed Town, Karachi also vide their letter dated 18-5-2006 duly accorded permission for construction of buildings on the subject plot. Furthermore the KBCA vide their letter dated 14-7-2006 have also verified after inspection that the construction up to the plinth level has been raised according to the approved plan ,which fact has been reconfirmed in the counter affidavit/written statement filed by the defendant No,3. The same being unexceptionable in law, the allegations to the contrary are absolutely false and baseless and accordingly denied.
61. Learned counsel stated that the Garden Quarters Scheme as prepared for the City of Karachi decades ago in 1933 with a population of about 116000 people in mind is obsolete and no longer applicable to the Metropolis, the population of which has multiplied by more than a hundred times over the years. 'He says that the rapid growth of the population due to factors including but not limited to unprecedented migration and movement of the rural population to the fast developing industrial and commercial city of Karachi has forced the Authorities to change the decades old practice as enshrined in the Garden Quarter Scheme, which does not fit in with the fast changing conditions. It is for this reason that having taken into consideration the Garden Quarter Scheme, the defendant No,3 while granted the Town Planning NOC, dated 31-1-2005 records that the proposed building plan for construction on the subject property was not affected by the same.
62. Learned counsel further stated that a prohibition on the construction of ground plus six storey buildings in the 'Garden Quarters Area is bound to place too onerous and heavy a burden on the middle class which is the most likely occupant of such residential buildings, and which is already being severely crushed by the ever rising real estate prices in the City.
63. Learned counsel stated that the contents of paragraph 5 of the Supporting Affidavit are vehemently denied in totality whatever construction was undertaken on the subject, property was done so in complete compliance with the duly approved plan and the entire process has been carried out with the requisite sanctions approval and permission in terms of the mandatory provision of the Regulations 2002. He has submitted that in the case of the old city areas the Garden East, it is specifically provided that the provisions of Regulations 25.3 are applicable and not Regulation 25.4 . The provisions of Regulations 25.3 for the minimum requirements have been more than complied with. The first requirement is 7 feet on the sides which are provided. Moreover the Second requirement which is of 10 feet on the back is also provided. There is no requirement of the front and the building could have been built up to the road side but a space of 15 feet has been provided in front to allow for the road widening. It is further submitted there are two plans which were submitted. The first provided for the basement parking while the revised proposed parking is the ground floor for the convenience of the flat owner .The details of the provision of parking space and motorcycle parking have also been duly provided in the second plan submitted and approved by the relevant authorities. As such the allegations in relation to the parking space are false and baseless and accordingly denied. The parking is now on the ground floor and as such no ramp is required. He has further submitted that the requirements for parking ratio for the subject property are contained in Regulation 24-4-1,11 Category (1) of which specifies the following two requirements: (1) one car for 1200 sq ft for flats , and one car for 800 sq feet for one shop under Clause 24.4.6. He submits that in this case parking is required for 20 cars in respect of the flats, and four for the shops, as required under the Regulation, thus making a total of 24.At the rate of 200 sq feet per car (making a total of 4800 sq feet for the cars) with an additional sixteen per cent being provided for Motorcycles( about 960 sq. Feet the total comes to 5760). Hence the minimum requirement at this ratio would be roughly 6000 sq. Feet whereas a space of 6661 sq. Feet has been provided. As such the objection of the plaintiff is devoid of any merit. In relation to the Floor area ratio he submits that the applicable ratios are provided in Regulation 25.9 Garden East under Zone A. The prescribed ratios are at the rate of residential (a) Residential 1-1.75, (b) industrial 1-1.75 (c)
Residential Cum Commercial 1.2 and .(d) commercial 2.50. The subject property falls in Category
(c) as the entire road has general permission for commercialization. The applicable ratio at the rate of 1.2 comes to 26163 and the building falls well within this limit. In relation to plaintiffs objection with respect to any alleged land development he submits that the present case is not one of land development .As such the objection of the plaintiffs is devoid of any merit.
64. Mr. Kamal Azfar learned counsel denied the plaintiffs' contention of creation of any alleged nuisance as being subjective, vague and unsubstantiated by any evidence whatsoever cogent or otherwise. He further submits that the allegations of the plaintiffs with respect to alleged infringement of their rights of easement of light and air, are no more than mere assertions of threatened violation of a supposed right, has based on any cogent evidence as to how those claimed rights are threatened to be infringed, and as such the plaintiffs are not entitled to any prohibitory orders in respect of the same. Learned counsel further submits that without prejudiced to the aforementioned all the assertions as to the amenities and any alleged nuisance were taken into consideration by the competent authority while approving the building plan and that the plea, that there would be environmental degradation, is not sustainable as a number of high rise buildings already exist in the immediate vicinity of the Subject Property. Learned counsel to substantiate his plea has rightly relied upon the recent judgment of Hon'ble Supreme Court of Pakistan in Jawad Mir Muhammad v Haroon Mirza (PLD 2007 SC 472 at 482) that: ' It is a well known and admitted fact that in the city of Karachi there is congestion on account of over population and in such situation there is no other way out except construction of high rise buildings. Such high-rise buildings are already in existence in the close vicinity of the building in dispute.
65. Learned counsel further submits that the Main Nishtar Road is commercialized and that all along the same, there are buildings which are five storeys high. As such the objections of the plaintiffs are vehemently denied as being misconceived' and baseless. He further submits that plaintiffs have no prima facie case in that the construction on the subject property is being carried.
Out in complete accordance with the Regulations 2002, the approved building plan and the terms of the standard form of lease, (attached as annexure C/1 to the plaint) which does not contain any restriction (as alleged) as to the height of any buildings to be constructed on the subject property without prejudiced to the aforementioned, and particularly the defendants contention with respect to their being no such restriction on the height of the building to be constructed in the Standard Form of lease for the area he submits that the plaintiffs being supposed residents of the Garden Quarters Area (which fact is vehemently denied for want of any documentary proof evidencing the same) , do not enjoy any vested right to enforce any restrictive covenant. He stated that it is settled principle of law, repeatedly enunciated by the superior Courts that the vested right of enforcement of a restrictive covenant rests with the lessor alone. Pertinent part of Judgment of the Supreme Court in the case of Messrs Multiline Associates v. Ardeshir Cawasjee (PLD 1995 SC 423) approving an earlier Division Bench Judgment of Hon'ble High Court of Sindh is reproduced below in support thereof.: ' ... Breach of restrictive covenants in respect of leases of urban lands could be resisted by lessor alone and not by other lessees unless there was tangible evidence that their rights as lessee will be infringed.
66. Learned counsel submits that the Lessor in this matter has, as aforementioned already given its No objection to the construction of a six storey building on the subject property and confirmed that the construction on the same is being carried out in accordance with the building plan duly approved in compliance with the Regulations 2002. As such the plaintiffs cannot claim any vested right to enforce any restrictive covenant and the plaintiffs have no locus standi to file this current suit.
67. In support of his arguments Mr. Kamal Azfar has relied upon the following case laws:-
(i) PLD 1999 SC 512; (ii) PLD 1999 SCMR 233; (iii) PLD 1999 SC 2098; (iv) 1979 CLC 282 and (v) PLD 2007 SC 426.
68. Mr. M. Aminullah. Siddiqui Advocate for Karachi Buildings Control Authority has controverted the arguments of Mr. Abdur Rehman. He also filed written arguments as well.
69. Learned counsel stated that in the exercise of the powers conferred by section 21-A of the Sindh Buildings Control Ordinance,1979 the Authority pleased to make Rules and Regulations namely Karachi Buildings and Town Planning Regulations, 2002.
70. Learned counsel contended that Regulation 1-5 and Section 2 of the Sindh Buildings Ordinance for the assistance of this Hon'ble court to reply of implementations of Sindh Town. Planning Act, 1915 which reads as under:- 1-5. These Regulations shall supercede the Karachi and Town Planning Regulations- 1979.
' Section 2 of SBCO 1979: Non-Application of a law. Nothing contained in any law for the time being in force shall apply to any matter regulated by this Ordinance.
71. Learned counsel urged that the Deputy Controller of the concern area filed his Counter Affidavit on behalf (KBCA) and submitted brief history of the plot measuring 1453 sq. Yards, the proposed building plan was forwarded by the lessors are residential-cum-commercial vide letter No, D.O
(Rev) K/R/B/456/2005 date 11-2-2005
72. Learned counsel contended that the approval was granted under the mandatory provisions of the Karachi Buildings and Town Planning Regulations 2002 and the relevant law in the Sindh Buildings Control Ordinance 1979 as amended up to date. As such the statement in respect of an alleged violation of the Sindh Town Planning Act 1915 is not only incorrect and misconceived, but entirely irrelevant.
73. Learned counsel rightly urged that all other previous laws are overridden by the SBCO 1979, the contention of the plaintiffs as already been rejected by this Hon'ble Court in the case of Muhammad Munir V/S Ahmed Ally. Memon and 2 others as PLD 1982 Karachi, page 425.
74. Learned counsel further stated that the builder filed all the relevant documents under Regulation No,3-2. PERMIT AND PROCEDURE -BUILDING WORKS.. That the KBCA officials complied all the formalities and procedures giving under the said Regulations and issued Architected Approval and so also issued Structure NOC.
75. It is further stated that the KBCA scrutinized the plan and it was founded in conformity with the provisions of the with the direction that Karachi Building KBTPR 2002 moreover the plot is situated on the declared commercial road i. e. Main Nishtar Road.
76. Learned counsel contended that KBCA has granted approval of the revised proposed building plan for construction of Ground Plus 6 Upper Floor after completion of all formalities - vide letter, dated 24-9-2005.
77. Learned counsel stated that the said plan was approved for shops on front Ground Floor abutting main Lawrence/ Nishtar Road with parking at rear Ground Floor and residential units on 6 upper Floors.
78. Mr. M. Aminullah Siddiqui learned counsel urged that the plot falls under the OLD CITY AREA as per Regulation No,25-9.1 in Zone A .Further as per Regulation No,25-9.1.2 Floor area Ratio shall be followed according to the use as laid down hereunder.
(a) Residential uses 1:1.75
(b) Industrial uses 1:1.75
(c) Residential---cum-commercial uses1:2.00
(d) Commercial uses 1:1.20
79. It is stated that the above plot falls as per clause C of the floor ratio as the plot Is Residential- cum-commercial uses admeasuring 1453 sq. Yards.
80. It is stated that the plaintiffs are habitual litigants against the constructional activities, even without any violation for the reasons best known to them. The plaintiff No,2 filed CPLA in Hon'ble Supreme Court of Pakistan against plot No,171 GRE which was decided by the Hon'ble Full Bench of the Supreme Court Control Authority to complete their exercise expeditiously as per rules and regulations.
81. Learned counsel contended that presently the plaintiff in this case filed another constitutional petition before the same High Court against the Plot No,170 GRE with the same arguments bearing No . C . P. -D-1900/2007.
82. Learned counsel for KBCA stated that the plaintiffs have not approached to this Ho'ble Court with clean hands having no cause of action, no locus standi, having been ill advised ignorant of law and unaware of the prevailing circumstance under which the law and the regulations have been amended and promulgated.
83. Learned counsel further urged that in view of the ' above arguments, the plaintiffs are not entitled for any relief and these applications may kindly be dismissed with costs.
84. Mr. Tassawar Hussain advocate for KW&SB submits that KW&SB is running its affairs in accordance with the law and whatever order be passed in this case of any direction be given to KW&SB it will be implemented in letter and spirit.
85. I have heard the learned counsel for the parties at length perused the 'record and also gone through the entire law and case law relied upon by them. The real contest is between the private parties in respect of raising the construction of multistoreyed buildings after obtaining the approval of building plans by the Karachi Building Control Authority.
86. The following facts are not disputed.
(i) That the building plans of the defendants have been approved by the Karachi Building Control Authority.
(ii) That more than 144 high- rise buildings have already been constructed in the vicinity most of these buildings have not even observed compulsory open space and the plaintiffs have taken no action in respect of other more than 144 high-rise buildings.
87. It may be observed that Karachi is the largest and the fastest growing mega city of Pakistan, with a population of over 16 million (2006), expected to reach 27 million mark by the year 2020. The city's land planning development and municipal control is fragmented into twenty (20) Federal, Provincial and Local Agencies with overlapping Powers/ functions and lack of coordination .These agencies include six (6) Cantonment Boards, Port Qasim Authority, Karachi Port Trust, Defence Housing Authority , Pakistan Steel, Pakistan Railways, Export Processing Zone, Sindh Industrial Trading Estate, Government of Sindh, City District Government Karachi, Lyari Development Authority, Malir Development Authority, Cooperative Housing Societies and private owners.
88. The population of Karachi according to the census of 1901 was 116000 and has in the course of the Twentieth century multiplied by more than hundred times. At the time when the Bombay Town Planning Act, 1915 was enacted, since renamed as Sindh Town Planning Act 1915 (STP Act 1915), Karachi was part of the Bombay Presidency. It was under the Government of India Act 1935 that Sindh was separated from Bombay and Karachi acquired the status of the capital of the Province of Sindh.
89. In the subsequent decade, Karachi became First Federal capital of the State of Pakistan as well as the Capital of Sindh. Karachi continues to be the industrial, financial and commercial capital of Pakistan. Both major ports of the country are situated at Karachi namely the port of Karachi and the Port of Bin Qasim as also the State Bank of Pakistan and the Pakistan Steel Mills Corporation
(Pvt) Limited which is the single biggest industrial enterprise of Pakistan.
90. The current housing backlog in Karachi is estimated to be about 90,00 units per year; accordingly about 100,000 new units will be required to be added per year to meet the requirements of 3.8 million households/units in the year 2020. In the year 2005, there were 2.2 million households which are expected to increase to 3.9 million in the year 2020. It means an addition of 1.7 million households between 2005 and 2020. The concept of Town Planning applicable to a city with a population less than half million, when the Garden Scheme 2 was notified in 1935 are obsolete and do not apply to a metropolis of 15 million.
91. Through floor addition high-rise development in designated area, walkup apartments and subdivision of large plots, densification will result in considerable increase in space use for housing and business offices and other uses. Though the process will occur in all towns in varying degree : it will be increasingly prevalent in six towns, namely Saddar Jamshed, North Nazimabad, Gulberg SITE and Shah Faisal.
92. The prediction of Alama Iqbal in his famous address to the Allahabad session of the All India Muslim League in 1930 that Karachi would become the second metropolis of South Asia has borne true.
93. The first Act was the Sindh Land Revenue Code Act (V of 1879) under which Sanad is granted, Section 62 provides that the Collector could require payment of price for unalientated land or to sell the same by auction and to annex such conditions to the grant as he may deem fit, before permission for occupancy is given under section 60. Section 133 imposes an obligation on the Collector to issue Sanads to persons to whom grants are made under section 62 in the prescribed form (Schedule H) or to the like effect by specifying plans and description the extent and condition of his holding.
94., The second status was the Sindh Town Planning Act, 1915 (Sindh Act I of 1915). The Act provides that the Local Authority could prepare scheme for town planning in which provision inter alia may be made for the construction, alteration and removal of building bridges and other structures imposition of conditions and restriction in regard to the open space to be maintained about the buildings. The number height and character of buildings allowed in specified areas and purposes to which buildings or specified area has been sanctioned the Provincial Government under section 29 shall appoint an Arbitrator to decide the matters specified under section 30 which mostly include financial obligations. After the Arbitrator has decided all matters , the final scheme shall be forwarded to the Provincial Government which may by notification in official Gazette sanction the scheme or refuse to give such sanction. Under section 46 a Town Planning Scheme could be varied or revoked by a subsequent Scheme . The Provincial Government may suo motu or on application of Local Authority or any person interested by a notification in the official Gazette revoke the whole or any part of a town planning scheme. In pursuance of this Act a scheme was prepared and notified in the Bombay Government official Gazette dated 28-11-1935 and same came into force from 1-1-1936.
95. Thereafter City of Karachi Municipal Act, 1933 was promulgated. Under Chapter XIII improvement Scheme and Building Control was vested in the Corporation and Building Control Rules, 1934 were framed which controlled and regulated the construction of buildings. This Act was followed by Karachi Improvement Trust Act, 1950 (Act XLVIII of 1950). The object was to make provision for development and expansion of the. Capital of the Federation and certain areas in its vicinity. The Board of Trustees was empowered to frame and execute the improvement scheme. By section 175 of the Act Chapter XIII of the City of Karachi Municipal Act 1933 which related to improvement scheme was repealed. The improvement schemes fell within the ambit of Karachi Improvement Trust. Then came Karachi Development Authority Order.1957. Its preamble is similar to that of Karachi Improvement. Trust Act 1950. By this Order Karachi Development Authority was authorized to deal with the development, improvement and housing schemes, Article 149 of the order repealed the Karachi Improvement Trust Act. It also repealed sections 186 to 192,198 to 201,203 and 204 to 211 in Chapter XII of the Karachi Municipal Act. The KDA therefore, performed the dual functions of Town Planning and Building Control. Thereafter Municipal Administration Ordinance 1960 (Ordinance X of 1960) was promulgated. It brought back the functions of Town Planning and Building Control within the purview of Municipal Corporation/ Municipality. Section 77 provided that no person shall erect or re-erect a building or continence to erect or re-erect a building unless the site has been approved and the building plan has been sanctioned by Municipal Committee. In the year 1972 Sindh People's Local Government Ordinance, 1972 (Order II of 1972) was promulgated. It repealed the Municipal Administration Ordinance 1960 and vested Karachi Metropolitan Corporation inter alia with the functions of planning, Development and Town Planning including.
Building Control. On 4-1-1979 Sindh Local Government (Amendment) Ordinance 1979 (Ordinance I of 1979) was promulgated which provided that in Sindh People's Local Government Ordinance, 1972 the People's shall be omitted in the title and the text wherever occurring. Thereafter Sindh Buildings Control Ordinance, 1979 (Ordinance I of 1979) was enforced on 17-3-1979 to regulate the planning, quality of construction and buildings control prices charged and publicity made for disposal of buildings and plots by builders and societies and demolition of dangerous and dilapidated buildings in Sindh. Section 6 of the Ordinance provided that no building shall be constructed before the Authority established under the Ordinance approved the plan 6f such building and granted no objection certificate for the construction thereof.
96. The latest enactment of the subject is the Sindh Buildings Control Ordinance, 1979. The Section 2 of the Act provides that nothing contained in any other law for the time being in force shall apply to any matter regulated by this Ordinance. One of the matters regulated by the Ordinance is Buildings and Town Planning Regulations. Section 21A subsection provides that Karachi Buildings and Town Planning Regulations shall be deemed to be regulations framed under this Section (3). As such Regulation if there is a conflict between the Regulation and any scheme sanctioned under the Act 1915, the Regulations will prevail. In this case for the area of Garden there is a specific provision which is to be found at Clause 25.9 on page 208. Moreover, the building bulks standards clause 25.3.1 on page 201 as well as 25.2.1 on page 199 provides that in case conflict between any standards, clause 25.9 will prevail. Thus specific intention of Karachi Buildings and Town Planning Regulations is that clause 25.9 will prevail.
97. Subsection (21)-A(3) of the SBCO 1979 was added by the amendment introduced in 1982 which reads as follows:-- (21)-A(3) The Karachi Buildings and Town Planning Regulations,1979,in the case of Authority of Karachi and the bye-laws of the council concerned in other cases, duly ,published shall until the regulations are framed under this section, be deemed to be the regulations, so framed; provided that they are not inconsistent with the provisions of this Ordinance and the rules framed thereunder.
98. Much water has been blown under the bridge so much so that the City District Government Karachi has prepared Karachi Strategic Development Plan-20.20 which has been passed by the City Council in accordance with the Sindh Local Government Ordinance 2001 and the same has also been discussed in a meeting under the Chairmanship of Governor Sindh wherein all the stakeholders have accepted the Karachi Strategic Development Plan-2020 and it shall be binding on all the stakeholders/civic agencies functioning in Karachi. Four Member Bench of Hon'ble Supreme Court of Pakistan on 10-10-2007 in case of Dr. Asim Hussain bearing H.R.0 No,6844/2006 has been pleased to pass the following orders: ' "In pursuance of earlier order dated 9-7-2007 a meeting has been convened under the Chairmainship of Dr. Ishratul-Ibad, Governor Sindh and following decisions have taken:--
(a) Karachi Strategic Development Plan 2020 prepared by the City District Government Karachi shall be binding on all the stakeholders civic agencies functioning in Karachi.
(b) A Board of Governors shall be constituted to manage the municipal services in Karachi . It shall be headed by the City Nazim Karachi and consisting of all heads of different agencies working in Karachi.
(c) Civilian areas shall be excluded from the cantonment boards through a notification by Ministry of Defence. To identify such areas, a survey will be conducted by a Committee comprising Director Military Lands and Cantonments Karachi, EDO Revenue, EDO MPGO and EDO Works and Services CDGK. The committee shall submit its report within one month.
(d) Some other Federal agencies including KPT, Port Qasim Pakistan Railways and Civil Aviation Authority have also assumed the role of Municipal Bodies. The extent to which these bodies should perform municipal activities should also be recommended by the Committee after the survey as mentioned at (c) above.... Let the above decision be implemented in letter and sprit. Adjourned to a date after two months.
99. I did not find any illegality or irregularity in raising multistoreyed buildings on plots in question as the permission to construct multistoreyed buildings and approval of building plan was done by the authorities enjoying powers to do so under Sindh Buildings Control Ordinance 1979 read with Karachi Buildings Town Planning Regulations 2002. Furthermore the defendants being owners of the plots in question have acquired fundamental rights to hold and enjoy the A property rights as guranteed under Articles 4 and 23 of the Constitution and in protecting or safeguarding the rights of easement privacy and peaceful enjoyment of the plaintiffs, the fundamental rights of the defendants in respect of ownerships of their plots could not be violated or infringed.
100. At present a presumption as required under illustration (e) of Article 129 Qanoon-e-Shandat Order 1984 can be raised that officials acts have been regularly performed. However all these contentions require deeper appreciation of evidence which can properly be thrashed out at the time of trial. From the tentative assessment of the material available on the record, I am of the considered view that the plaintiffs have no prima facie case at this stage. The balance of convenience also not in favour of the plaintiffs as great inconvenience will be caused to the defendants being owners of the properties A in exercising their legal rights to deal with their properties as per law. No irreparable loss will be caused to the plaintiffs if the injunction is refused because the loss if any can be compensated in the shape of damages, which has already been claimed minimum in the sum of Rs 10 million in prayer clause of suit No,724/2006 and with a minimum of Rs,5 million in suit No,465/2006.
101. In consequence both the applications are dismissed with no order as to costs and the interim orders passed earlier in suit No,465/2006 and Suit No,724/2006 are recalled.