1. ' NADEEM AZHAR SIDDIQI, J.---By this application the plaintiffs have prayed that defendants Nos. 1 and 2 may be restrained from demanding NOC or any sum from the plaintiffs for selling or letting their respective shops/units and/or from directly or indirectly interfering with the rights of the plaintiffs to use or deal with their respective properties in any lawful manner.
2. ' In the application it has been stated that the plaintiffs booked/ purchased their respective units on ownership basis and paid entire consideration and physical possession was delivered to them and that defendant No.2 wanted to execute sub-leases with such terms and conditions which are contrary to the original terms and conditions upon which the units were booked.
3. ' The defendants Nos. 1 and 2 have filed counter-affidavit to the said application in which it has been stated that ownership will not be conferred upon the plaintiffs unless sub-lease is executed and the plaintiffs are refusing to execute tub-lease and the terms and conditions are in accordance with the terms of allotment. In the counter-affidavit it has been further stated that draft sub-lease was prepared pursuant to compromise reached in previous suit and all the occupants including plaintiffs have agreed upon the terms and conditions proposed in the draft sub-lease by signing draft sub-lease.
4. ' Mr. Khalid Jawed Khan, learned counsel for the plaintiffs, submits that the plaintiffs are owners and no restriction can be imposed upon them for the use and enjoyment of their respective units and the conditions imposed by the defendants Nos. 1 and 2 amount to clog upon the title of the plaintiffs. The learned counsel referred to various clauses of the terms and conditions of allotment and submits that plaintiffs can transfer their units without intervention of defendants Nos. 1 and 2.
5. He then referred to draft lease and submits that clauses 4, 7, 19, 20 and some other clauses are contrary to the terms of allotment order and against the exclusive rights acquired by the plaintiffs.
6. The learned counsel then referred to clauses 99, 106 and 116 of the Building Bye-Laws of Cantonment Board Clifton and submits that the terms and conditions mentioned in the draft sub- lease are contrary to the bye-laws.
7. ' He then submits that condition for obtaining NOC for charge of use of units and for transfer of units is against sections 8, 11 and 55 of the. Transfer of Property Act. The learned counsel has relied upon the following reported cases:--
(1) Haji Noor Muhammad and others v. Karachi Development Authority and two others (PLD 1975 Karachi 373), (2) St. John Ambulance Association Pakistan v. Pakistan Red Cross-Society and another (1988 CLC 186) and (3) United Bank Limited v. Muhammad Azim and another (PLD 1985 Karachi 215).
8. ' Mr. Arshad Tayebaly, learned counsel for defendants Nos. 1 and 2, submits that the defendants Nos. 1 and 2 are not charging any amount for issuance of NOC. He submits that there is a difference between an open shop and a shop in a shopping mall and for the purpose of security and properly maintaining the conducive shopping environment obtaining of NOC before change of use of unit and transfer is necessary. He submits that till to date the plaintiffs have not obtained the leases and are governed under the terms and conditions of the allotment. He has also referred to Clause 12 of the terms and conditions of the Allotment and clause 110 of the Building Bye-Laws of Cantonment Board, Clifton, and submits that in accordance with the provisions the plaintiff neither can change the use of unit for which the same was initially acquired nor can transfer their units without execution of lease and the defendants Nos. 1 and 2 are rightly asking for the NOC. He then submits that the plaintiffs have already agreed the terms and conditions stipulated in the draft lease and at this stage cannot dispute the same.
9. ' Mr. Sohail H.K. Rana, learned counsel for defendant No.4, states that the dispute is between the plaintiffs and defendants Nos. 1 and 2 and the leases are to be executed keeping in view the Building Bye-Laws.
10. ' I have heard the learned counsel for the parties and perused the record.
11. ' The dispute between the plaintiffs and defendants Nos. 1 and 2 appears to be the terms and conditions contained in the draft sub-lease to be executed by the defendants Nos. 1 and 2 in favour of plaintiffs. The plaintiffs appeared to be aggrieved by clause (11) sub-clauses 4 to 7, 9, 18 to 21, 27, 28, 32, 33, 35 to 38, 41, 42 and clause IV of the draft lease (Annexure 'E' to the plaint) and sought declaration that the above clauses are arbitrary, unreasonable and illegal. Admittedly no sub- leases are executed in favour of plaintiffs and allotment and possession of their A respective units governed under the terms and conditions of the allotment. From perusal of the terms and conditions of allotment as well as terms and conditions laid down in possession letter there appears to be no requirement for obtaining NOC for change of use of unit and the same can be used for all lawful purposes except as provided under clause 23 of the terms and conditions of the Allotment. Regarding NOC for transfer clause 12 of the terms and conditions of Allotment provides as under:- ' The allottee will not sublet, transfer or sell his office/shop before taking possession and execution and registration of sale/ sub-lease deed without the prior written permission of the company. The company may allow such transfer on receipt of payment of all outstanding dues and transfer fee."
12. ' From the perusal of the above clause 12 it appears that the plaintiff cannot sublet, transfer or sell his unit before execution of lease in his favour without the prior written permission of defendants Nos. 1 and 2. The condition for NOC before transfer of shop is in consonance with the terms and conditions of the allotment and at this stage cannot be objected.
13. ' Further more clause 110 of the Building Bye Laws of Cantonment Board also provides that the allottee can sublet, transfer or sell his unit to any one, with prior written permission of the builder, who shall allow transfer on receipt of all outstanding dues upto that time and transfer fee at the rate of half per cent of total price of unit. Presently the status of the plaintiffs are as of allottee and unless sub-lease is executed in their favour they cannot exercise their exclusive powers as owners of the respective units and are bound by the terms and conditions of the allotment, possession letter as well as the Building Bye Laws. The contention of learned counsel for the plaintiffs that some of the terms and conditions of draft lease are contrary to law cannot be decided at this stage. The contention of the learned counsel for defendants Nos. 1 and 2 that by signing the draft sub-lease the plaintiffs have accepted the terms and conditions of draft sub-lease cannot be decided at this stage without providing opportunity to the parties to prove their respective pleas.
14. In view of the above this application is disposed of with the observation that for change of use of shop no NOC is required from defendants Nos. 1 and 2 and the plaintiffs can use the shop for any lawful purpose subject to clause 23 of the terms and conditions of allotment. However, till such time the leases are executed in favour of the plaintiff they are bound by the terms and conditions of allotment, possession letter and building bye-laws and are required to obtain prior written permission from defendants Nos. 1 and 2 for transferring, sub- letting and selling units in terms of clause 12 of the terms and conditions of the allotment and clause 110 of the Building Bye-Laws of Clifton Cantonment Board.