1. ' KHAWAJA NAVEED AHMED, J.---C.M.A. No,2061 of 2007 has been moved by the plaintiff along with the plaint and was present in the office on 13-3-2007. The matter came up for hearing on 16-3-2007 and this Court was pleased to pass status quo order till 22-3-2007, which is continuing till today.
2. This application was heard by me on several dates of hearing and finally the order was reserved on 21-4-2008.
3. ' Eight plaintiffs have filed suit forl declaration, injunction and cancellation of lease and documents against 21 defendants, which include apart from private defendants, Nazim Union Council No,7 as defendant No,5, PECHS as defendant No,6, Federation of Pakistani as defendant No,7, City District Government Karachi as defendants Nos.7, 8, 9, 10 and 21, KESC as defendant No,11, Sui Southern Gas Co. As defendant No,12, K.B.C.A. As defendant No,13, KW&SB as defendant No,14. Main grievance the plaintiffs Nos.1 to 7 is that they are residents of PECHS, while plaintiffs No,8 is a society registered under Societies Registration Act, 1860, which is concerned of the environmental degradation of residential areas when they deviate substantially from the town planning and development scheme of the different residential areas. It is stated that defendants Nos.1 to 4 are the old owners of the land, while defendants Nos.16 to 20 are the new owners of the land. It is the case of the plaintiff that permission has been granted for change of land use and for construction of the plot to defendants Nos.1 to 4 and in this case no permission has been granted for conversion or change of land use to defendants Nos.16 to 20. It is stated in the plaint that the residents of the area were greatly perturbed when they came across the newspaper advertisement B on 7-11-2005 and 8-11- 2005 that defendants Nos.1 to 4 had applied for change of land use with defendants Nos.3 to 8 and construction of commercial plot on which nine-storeyed building would be constructed. This plot is located as a corner plot at the junction of Sir Syed Road and Khalid Bin Walid Road. It is mentioned in the plaint that Khalid Bin Valid Bin had been commercialized while Sir Syed Road is not commercialized on one side of the plot facing Sir Syed Road. The plaintiffs have challenged the competency of defendants Nos.5, 6, 7 and 8 to commercialize roads and plots and have stated they cannot commercialize roads and plots. It is stated in the plaint that after seeing the advertisement in daily "Jasaarat" dated 7-11-2005 and in daily 'Times' dated 8-11-2005, the plaintiffs Nos.1 to 9 had written letter of protest against commercialization of plot vide letter dated 21-11- 2005. The main objections of the plaintiffs are as under:--
(a) It will become public nuisance for neighbours and residents of the city.
(b) Town planning laws require that proper urban planning studies be undertaken first; and
(c) Prior arrangements have to be made for adequate enhanced requirement of civic/municipal facilities and infrastructure in the area.
(d) There are no mandatory precautions against fire as required under Chapters 13 and 14 of Karachi Building and Town Planning Regulations, 2002.
4. ' It is stated by the learned counsel for the plaintiff that although the hearing was held by defendant No,5. None of the plaintiffs was informed as to the dates of hearing. Note-sheet shows that Shehri's objections were noted, but were ignored (Annex. 6 of the plaint at pages 91 and 92). In this regard the learned counsel has relied upon case reported in 1997 SCMR Page 1543 relevant portion at page 1551-B, Basharat Ali v. Director Excise.
5. ' The defendant No,10 in spite of the objections raised by the plaintiffs vide their letter dated 5-4- 2006 had issued NOC in the light of Resolution No,383, which had commercialized Khalid Bin Walid Road. The learned counsel has drawn the attention of this Court towards Annex. D/17 attached with the counter-affidavit in C.M.A. No,2061 of 2007, which is the proposed plan and shows that shops are proposed to be constructed on Sir Syed Road side of the p'ot as well as side of the plot facing Khalid Bin Walid Road. It further shows ramp to the first and second floor parking, which has twenty feet wide path in between Plot No,167-A and Plot No,166-A. Learned Advocate states that this is prohibited.
6. ' The learned counsel has vehemently challenged conversion permission granted by Government of Pakistan, Annex. D-19 of the counter-affidavit to C.M.A. No,2061 of 2007. The learned counsel states that the exercise of discretion has not been properly done by defendant No,7 and it is manifestly contrary to the principle of structured discretion, which require open plans, open policy statement, open rules, open findings, open reasons, open precedents and four informal procedures. To support his arguments on this point the learned counsel for the plaintiff has relied upon case-law reported in PLD 1991 SC page 14 relevant portion at page 24-B Chairman Regional Transport Authority Rawalpindi v. Pakistan Mutual Insurance Company Ltd. Rawalpindi.
7. ' The second case on this subject relied upon by the learned counsel is Gadoon's case 1997 SCMR page 641, relevant portion at pages 799 to 801 and paras 40 to 44. Another case relied upon on this subject is Abu Bakar Siddiq v. Collector of Customs 2006 SCMR page 705, relevant portion at page 714-716-B, C, D & E ' The learned counsel has drawn the attention of this Court towards Article 25 of the Constitution of Pakistan and has argued that change of land use of plot without inviting/considering objections of necessary parties is illegal. He has relied upon case reported in PLD 1993 SC page 341 relevant portion at pages 358 and 359. Government of Pakistan v. Azizullah Memon. Moreover non-approval from Environmental control authority constituted under Pakistan Environmental Protection Act, 1997 is violation of section 12 of the Act as well as Rules framed in 2000, which prescribed the requirements necessary. The learned counsel has argued that approved plan is illegal on this count also. The learned counsel for the plaintiffs has prepared a table of violations of regulations, which I reproduced hereunder:--- Regulation 3-1.1Relating to public notice. The public notice is misleading as stated above.
8. Regulation 3-2 Requirement for Permits none have been obtained.
9. Regulation 3-2.17Occupancy certificate cannot be granted if there are volitions of the Regulation.
10. Regulation 12.1 and 12.2.No provision for water increase in persons that will reside on the.
11. Please also see C.M.A. No Chapter 13 & 14 of the regulationsNo provisions for fire precautions.
12. Regulation 18-4.2 to 18-4.24No bearing given to the public Objections of plaintiffNo.8 disregarded.
13. Regulation 18-5Conversion is contrary to this Regulation, as there is no uniform policy in this regard.
14. ' The learned counsel has emphasized that no commercial openings can be made on Sir Syed Road side of the plot and he has relied upon case reported in 2006 YLR page 2537 relevant portion at pages 2577.
15. ' On the point of interim relief the learned counsel has relied upon PLD 1988 Karachi pages 261, PLD 1954 Sindh page 61 in which principles of injunction have been elaborated, 1990 MLD page 2232. In this case the Court has observed that "for granting injunction it is sufficient if Court found case as one where substantial questions are to be investigated the matter should be preserved in status quo till disposal of the case".
16. ' In PLD 1983 Karachi page 387 deals with prima facie case, balance of convenience or inconvenience, avoidance of complications and irreparable loss have been considered. 1999 YLR page 1634, it is held in this case that where act was based on illegality, the grant of interim relief could not be withheld ground that final relief would stand granted. Illegality could not be allowed to continue even on grounds of convenience or otherwise. The learned counsel has finally concluded that he has established prima facie case on the basis of facts and violation of law. Regarding balance of convenience he has relied upon 1976 SCMR page 393. He has argued that if injunction is not granted it will put a premium on illegality as has been held in 1990 CLC page 448 relevant portions at pages 454-D and 456-E. He has stated that plaintiffs will be hard put to demolish the building in case the suit is granted as in the meantime third party interest will occupy the premises and they all will be dislocated.
17. ' Mr. Mushtaq A. Memon, the learned counsel for defendants Nos.1 to 4 has stated that the suit against defendants Nos.1 to 4 is vexatious, mala fide and as a result of malice against them. They have been joined in the suit deliberately in order to harass them. The learned counsel had stated that defendants Nos.1 to 4 had purchased the suit property through sale-deed on 1-9-2004, which was registered on 14-9-2004 and was subsequently mutated in the records of P.E.C.H.S. It is argued that soon after the purchase of propertey by the plaintiffs, number of multistory buildings and commercial projects were constructed by the landowners and as such it was not feasible for the plaintiffs to construct a residential house under such environment. Resultantly they had decided to get the said plot duly converted into commercial one by adopting procedure and payment of fee prescribed for such conversion. The defendants Nos.1 to 4 had got ' prepared plans for construction of commercial project on the subject plot and for this purpose they had submitted such applications and plans to all relevant authorities and after fulfilling all the legal requirements the plaintiffs had obtained requisite permissions and NOC for commercialization of the property from competent authority in accordance with law and rules laid down by the authority. It is further argued by the learned counsel that after obtaining permission from concerned authorities the answering defendants received threats from persons posing to be representatives of plaintiff No,8 to the effect that they will not allow the defendants Nos.1 to 4 to make construction of commercial nature on the said plot and if the answering defendants dared to do so, plaintiff No,8 will involve the answering defendants into litigation which can be dragged for years. The answering defendants being peace loving persons and wishing not to be involved in the litigation by a conveyance deed, dated 25 November, 2006, they sold the said property to defendants Nos.16 to 20. As such since November, 2006, the answering defendants had left no right, title or interest in the property, which was in the due course mutated to the names of defendants Nos.16 to 20 in all concerned departments. He has stated that under the law registration of conveyance deed and mutation amounts to notice to public. The learned counsel has further stated that as soon as answering defendants came to know about the filing of the suit they i.e, answering defendants at the very first opportunity filed a statement before the Court mentioning that they having sold the suit plot vide conveyance deed, dated 25th November, 2006, they have not left any right, title and interest in the said property. They thereafter, filed an application under Order I, rule 10, C.P.C. (C.M.A. No,2695 of 2007) duly supported by affidavit praying that their names may be deleted from the array of defendants. The plaintiff did not file any counter affidavit to the said C.M.A. No,2695 of 2007 but insisted that the names of answering defendants may not be deleted from the array of defendants.
18. The learned counsel states that the plaintiffs at all relevant times had knowledge that defendants Nos.1 to 4 having been cowed down by threats of plaintiff No,8 had already sold the suit property prior to filing of this suit and at the time of filing of the suit they were not concerned with the said plot. Inspite of having knowledge of all these facts the plaintiffs have filed this suit to harass the answering defendants, which is malicious, mala fide and defendants are entitled to the compensatory cost. The learned counsel for defendants Nos.1 to 4 has prayed that the present suit against defendants Nos.1 to 4 may be dismissed with compensatory cost.
19. ' On behalf of defendants Nos.16 to 20 the learned counsel has argued that the plaintiffs have no cause of action and present proceedings do not involve any question of general public interest. It has been argued that the plaint is bad for want of legal character and write in terms of section 42 of Specific Relief Act. It is stated that the proceedings, ex facie, are bad for being mala fide and have been filed merely to pressurize and harass the answering defendants. It is further stated that the plaintiffs have wilfully approached this Court after long delay in order to cause maximum damage and loss to the answering defendants. The learned counsel has stated that the proposed construction on the subject plot has been planned strictly in accordance with law (approved plan) and the rights and easements of the neighbours have appropriately been safeguarded. The learned counsel has stated that plaintiffs cannot seek prohibitory injunction to stop construction on the subject plot, which will be raised in accordance with the building plan approved by the building control authorities. The learned counsel has specifically denied that the commercialization and construction on the subject plot would cause any inconvenience or disturbance to the residents of the area. He states that time lapsed between 7-11-2005 when the advertisement was published and 13-3-2007 when the present suit was filed is of significance. He states that defendant No .6, P.E.C.H. S. After due consideration of the attending circumstances had recommended commercialization of the subject plot through letter, dated 29-4-2006. The defendant No,7, Federation of Pakistan had accorded approval for commercialization of the subject plot in letter, dated 10th October, 2006. Prior to that matter was also examined by C.D.G.K. For conversion of land used from residential to commercial.
20. ' During the process NOC was first issued by concerned UC Nazim, Jamshed Town, Karachi. The conversion proposal submitted to the City District Government, Karachi (Master Plan Group Offices) was processed in accordance with Master Plan Bye-laws 2003 and the Policy devised by C.D.G.K.
21. For commercialization of land. The huge commercialization charges in the sum of Rs,16 million beside security fee in the sum of Rs,200,000 was deposited. On 5-4-2006, NOC was issued by City District Government, Karachi (Master Plan Group of Offices) allowing use of the subject plot was commercial (shops/ flats/offices) used from Town Planning point of view. All legal formalities have been completed. He has relied upon case of Captain S.M. Aslam and others v. K.B.C. A. And others reported in 2005 CLC page 759. The learned counsel has emphasized that proposed construction on the subject plot shall not cause public nuisance as all the urban planning studies have been undertaken and provisions of civic/municipal facilities and precautions against fire have been considered before approval for conversion of land used and building plan. The Town Nazim as well as C.D.G.K. And other civic agencies have duly taken into account the availability of various utilities as a result of construction of commercial building over the subject plot. He has argued that the plaintiffs cannot stop development and growth of the city. The environmental taws do not restrain construction of multistoreyed building and such principle is well established by now. The learned counsel has strongly defended the action of the government defendants and stated that competent authority has rightly allowed conversion of the subject plot. He has stated that the answering defendants have already booked thirteen shops and 39 offices/flats in the proposed multistoreyed project known as "Al-Haram Corner". He states that the answering defendants have already received a sum of Rs,30,381,000 from various allottees of the various units in the project proposed to be constructed over the subject plot. The allottees, who have made part payment are possessed of vested interest and shall seriously be prejudiced in the event of grant of plaintiff's prayer. The structural plan has already been approved on 10-3-2007 by the defendant No,9 and the defendants Nos.16 to 20 have already started construction over the subject plot strictly in accordance with law and approved plan. The learned counsel has not only prayed for vacating the status quo order, but has vehemently argued for a dismissal of the suit on the ground of its being mala fide and malicious.
22. ' The official defendants have also filed their written statement as well as counter affidavits, defending their actions and have supported the defendants.
23. ' I have heard the arguments of the learned counsel at length on number of dates of hearing and have perused the case-law on the subject, which has been mentioned above. No doubt this city has been over crowded and all residential bungalows in different vicinities of the city are being sold by its original owners in the hands of Builders, who after demolishing the same are getting them commercialized and in many cases even without commercializing have raised multistoreyed buildings to the detriment of neighbours who are occupying their houses. This has been done most probably on the principle of economics, which is ruled by demand and supply. In order to meet the growing needs of the city and for creating job opportunities for the new generation the bungalows are being demolished and shops are being constructed either by the owners themselves or by the Builders who purchased the property from the owners after payment of very lucrative prices. Shehri has taken stand and is fighting against this menace and had filed number of cases in the Courts in order to preserve environment as well as available civic facilities in the area. It is very difficult to differ with the noble cause, Shehri is undertaking with the help of Barrister Naeem ur Rehman, who very devotedly undertakes the job. It is settled principle of law that every case is to be seen in the light of its own facts and order passed in one case by the Court can have persuasive c effects for such orders in other cases and in many cases where facts are similar it can also have the binding effects. In the present case it is a known fact that in the vicinity of subject plot commercial buildings have been constructed all around. Those owners of residential houses, who are still living, ate waiting for lucrative offers to sell their residential houses for creating opportunity for the builders to raise multistoreyed building for commercial purposes. In such circumstances it is very difficult to force or pursue some one to built residential house on his plot, which he has purchased on a price much higher to the prevailing market price. Laws are made to help the people and not to curb the people.
24. ' I have perused the facts of the entire case of both the parties and case-law on the subject cited by the learned counsel for the parties. The Court orders are in favour of contentions raised by counsel for both the parties on the basis of facts of each case. In some cases Courts are very strict in gr anting permissions for construction of multistoreyed buildings in residential areas, while in some cases keeping in view the third party interest involved in the subject property, the courts have taken lenient view. In the present case the Builders have taken permission from all the concerned government departments. The departments are competent by law to grant such permission according to their own rules and regulations. The defendants Nos.1 to 4 who had sold the plot had paid fee prescribed by the government. At the face of it the Builders have complied with all the legal formalities and are in possession of no objection certificates issued by almost all the departments, who matters in this business. Third party interest has already been created. The Builders have received Rs,30,381,000 from general public and have already booked the shops/apartments/offices. They have undertaken to raise the construction strictly according , to approved plan. In the circumstances passing of injunction order at this stage will virtually amount to deciding the whole case, which I do not think is proper at this stage of the case. The entire evidence has yet to be led by the parties and each party has to prove its case by way of evidence, documents, laws and rules on merits. I therefore, at this stage of the case will refrain from expressing any opinion as it may prejudice the case of either party.
25. ' In the circumstances I allow the defendants Nos.16 to 20 to raise construction of the building strictly as per approved plan. The injunction application (C.M.A. No,2061 of 2007) is dismissed and status quo earlier granted is hereby vacated.