' KHALID ALI Z. QAZI, J.---This is an application under Order XII rule 6, r/w under Order X, Order XXIII and section 151, C.P.C. Wherein the plaintiffs have prayed that the suit may be decreed in view of the admissions of the original defendants Nos.2 and 4 (now defendants Nos.1 and 3) and the consent given by the original defendant Nos.1 [i.e, Progressive (Pvt.) Ltd, now deleted] in the following terms:--
(a) the defendants Nos.2 and 4 (now defendants Nos.1 and 3) may kindly be directed to issue a site-plan and execute a registered lease in favour of the-plaintiffs for an area of 2195.22 sq. Yds in respect of the suit property;
(b) in view of the consent given by the learned counsel for the defendant No,1 (now deleted) during the course of the hearing, direct the said defendant No,1 to vacate 45.96 sq. Yds. In favour of the plaintiffs as shown in para 7 of the report of the learned Nazir of this Court dated 6-11-2008;
(c) declare that the plaintiffs are only required to leave an area for the parking as per Regulation 135 of the "Bye-laws regulating the Erection and Re-Erection of. Or Additional and Alterations to Buildings in the Karachi Cantonment" contained in the S.R.O. 1004(1)183 dated 19-7-1983 read with the revised policy contained in the letter of the defendant No,4 (now defendant No,3) bearing No,3/6/D-12 (ML&C)/97-2007 dated 31-12-2007;
(d) direct the official defendants to refund the amount charged by them for the excess area i.e, 224.78 sq. Yds. Along with mark up from the date of payment by the plaintiffs till the date of refund at Bank rate."
2. The brief facts giving rise to the present application are that the plaintiffs are owners of Plot No,115/1, situated at Rizvi Shaheed Road, Karachi admeasuring 2420 Sq. Yds. (hereafter referred to as "the suit property"). In the year, 2005 the Military Estate Officer vide registered lease deed dated 29-6-2005 leased the suit property for 99 years in fvour of the plaintiff. In terms of the terms and conditions of the lease, as contained in the letter written by the Ministry of Defence dated 31-5- 2005, out of 2420 sq. Yds. The plaintiffs were made to leave 709 sq. Yds. As "mandatory car parking space". Hence the registered lease deed was executed in favour of the plaintiffs for the balance 1711 sq. Yds.
3. The suit was filed, inter alia, on the premise that the adjoining owner of plot 115, Rizvi Shaheed Road, Karachi was encroaching upon the suit property. And also that the requirement to leave 709 sq. Yds. As mandatory car parking was unlawful.
4. A learned Single Judge vide order dated 22-10-2008 was pleased to restrain the then defendant No,1 i.e, Progressive (Pvt.) Ltd., the adjoining neighbour, from raising any construction within the plot line of the plaintiffs which was reflected in the official site-plan attached to the said plaintiffs' lease deed. Thereafter when the injunction application came up for hearing the official defendants i.e, the then defendants Nos.2 and 4 (who are now defendants Nos.1 and 3) filed their written statement; in para 8 of the preliminary submissions to the written statement the said official defendants although stated that the plaintiffs in view of a gross mistake were given an area of 2420 sq. Yds., as mentioned in the letter of the Ministry of Defence dated 31-5-2005, a clear admission was made that the plaintiffs were only entitled to be given the area of 2195.22 sq. Yds. It was, however, stated that if the mandatory car parking was ordered to be left by the plaintiffs, they would have to leave 635.56 sq. Yds. Instead of 705 sq. Yds., and hence they would be entitled to an area of 1559.66 sq. Yds. For the purposes of carrying out any construction.
5. Upon the above, the plaintiffs and the original defendant No,1 i.e, Progressive (Pvt.) Ltd. Had entered into a compromise dated 8-5-2009 wherein the plaintiffs, inter alia, agreed for the recall of the interim order dated 22-10-2008, upon the said private defendant, vacating the space encroached by it as per the report of the Nazir dated 6-11-2008.
6. In pursuance of the above compromise the Court vide order dated 8-5-2009 decreed the suit against the said private defendant in terms of the prayer (b) of C.M.A. 3269 of 2009 while dismissing the application for injunction i.e, C.M.A. 9752 of 2008 (a typographical mistake had cropped up in mentioning the number of the dismissed C.M.A. Which was corrected vide order dated 20-5-2009.
7. Importantly, through order dated 8-5-2009 the Court also allowed C.M.A. 3270 of 2009 (moved by the plaintiff) under Order XIV rule 2, C.P.C., Rule 22(7) of the SCCR (OS) read with section 151, C.P.C. Framing the following legal issues:-- "(1) Whether in view of the categorical admission made by the defendants Nos.2 and 4 (now defendants Nos.1 and 3) and the consent offered by the defendant No,1 (now deleted) the official defendants are liable to issue a site-plan and execute a registered lease in favour of the plaintiffs for an area of 2195.22 sq. Yds. In respect of the suit property?
(2) Whether the plaintiffs are only required to leave car parking as per Regulation 135 of the "Bye- Laws Regulating the Erection and Re-erection of, or Additional and Alterations to Buildings in the Karachi Cantonment" contained in S.R.O. 1004(1)/83 dated 19-7-1983 read with the revised policy issued by the defendant No,4 (now defendant No,3) contained in its letter No,3/6/D-12(ML&C)/97- 07 dated 31-12-2007?"
8. The case of the plaintiffs is that they now agree to the reduction in their claim with regard to the area of the property from 2420 sq.Yds. To 2195.22 sq.Yds., which is the stance of the official defendants. In the same breath the plaintiffs have contended that instead of leaving 635.56 sq.Yds., the plaintiffs may only be required to leave car parking as per Regulation 135 of the Bye- Laws Regulating the Erection and Re-Erection of, or Additional and Alterations to Buildings in the Karachi Cantonment contained in S.R.O. 1004(1)/83 dated 19-7-1983 (hereafter referred to as "the Karachi Cantonment Bye-laws") read with the revised policy issued by the defendant No,3 contained in its letter 3/6/D-12 (ML&C)/ 97-07 dated 31-12-2007.
9. After the admission of the official defendants that the plaintiffs are, entitled to a reduced area of 2195.22 dq.Yds., it is only a matter of deciding a legal question as to what area is required by the plaintiffs to be left as car parking. Vide order dated 8-5-2009 the C.M.A. 3270 of 2009 was allowed which means that the suit is required to be decided on the legal questions framed in that order and reproduced above. No appeal has been filed against the said order which has attained finality.
The question which now requires adjudication is as to what area is required by the plaintiffs to be left as car parking according to law?
10. Dr. Farogh Naseem, the learned counsel for the plaintiffs, in support of the listed C.M.A. Has relied upon the "Policy for conversion of properties held on Old Grant/Cantonment Code Leases into Leases under the CLA Rules, 1937" dated December, 2003 (hereafter referred to as "The Old Policy") and the "Revised Policy of Conversion of Properties held on Old Grant/Cantontnent Code of. Leases into Regular Leases under the CLA Rules, 1937 and Conversion/Change of Purpose of Regular leases into Fresh Leases' dated 31-12-2007 (hereafter referred to as "the Revised Policy"). According to the learned counsel for the plaintiffs the Old Policy provided for leaving parking of 20 feet in front and on the sides, in addition to parking required under the Karachi Cantonment Bye-laws. The relevant provision in the Old Policy is reproduced as follows:-- "(viii) Parking of area of 20' in front or at sides at an appropriate place shall be left by the grantee/ code lessee while conversion of Old Grant/Cantonment Code Leases into regular lease for commercial purpose outside Bazar area and inside Bazar area if the leased plot is more than 400 sq. Yds. In addition to the parking area required under Building Bye-Laws of the respective Cantonment Board. DGML&C will have the authority to exempt/modify parking space on the recommendations of DML&C in case of already constructed plots/where it is impossible or not practicable. In such case 20' parking space will be left and reclassified as 'C' at the time of re- construction of building without which the Building Plan will not be cleared/sanctioned by respective MEOs/Cantonment Boards."
11. The learned counsel for the plaintiffs has stated that as per the Revised Policy there has been a shift so that the parking is now only required to be left as per the applicable Bye-laws of the Cantonment Board. The relevant provision in the Revised Policy in this regard is reproduced as follows:-- "(8) Parking Space (s) Set Backs. The parking space(s) Set backs shall be left as per local byelaws of the Cantt. Board. The same will be ensured at the time of approval of building plans and during the construction phase."
12. The learned counsel' for the plaintiffs then referred to Rule 135 of the Karachi Cantonment Bye- laws which states that the parking space shall be provided within the building premises either in open space or in the basement or on any floor or floors with ramps/lifts. The said Regulation 135 is reproduced as follows:-- "Reg. 135--Parking and loading and unloading space.--(1) Parking space shall be provided within the building premises either in open space or in the basement or on any floor or floors with proper ramp/ lift."
13. The learned counsel for the plaintiffs has relied upon the following judgment in the contention that Board Bye-laws ae binding on both the builders and the building authorities/lessor and the Courts have every power to enforce such Building Bye-laws. In this regard reliance is placed on:--
(a) Multiline Estates v. Aredeshir Cowasjee PLD 1995 SC 423;
(b) Excell Builders v. Aredeshir Cowasjee 1999 SCMR 2089;
(c) Ardeshir Cowasjee v. KBCA PLD 1999 SCMR 2883;
(d) Mst. Zarina v. Province of Sindh 2004 CLC 767.
14. In the context of Order XII rule 6, C.P.C. The learned counsel for the plaintiffs has submitted that once the plaintiffs have agreed to the reduced area of the lease from 2420 sq. Yds. To 2195.22 sq.Yds. The stance of the official defendants constitute a clear admission upon the basis of which the only matter required to be decided is the legal question as to what is the mandatory car parking which the plaintiffs are required to leave according to law.
15. Reference is invited by the learned counsel for the plaintiffs to the provision of Order XIV rule 2 of the C.P.C. Which clearly states that where both issues of law and facts arise in the same suit, and the Court is of the opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose the Court may, if it thinks fit, postpone the settlement of issues of fact until after the issues of law have been determined. The issues of law were framed on 8-5-2009, which order has attained finality.
16. In reply, Mr. S. Tariq Ali, the learned counsel appearing for the official defendants, has contended that the Revised Policy was issued on 31-12-2007 which has no retrospective effect since the land of the plaintiffs was regularized in 2005 according to the Old Policy which was prevalent then.
According to the learned counsel for the defendants, the parking space of 709 sq.Yds. Has been mandated for parking purpose, which is a public purpose in terms of the Modified Land Policy and such policy was made by the Cantonment Board under the powers vested in it. It is further stated by the learned counsel that there is no categorical admission on the part of the official defendants, and hence the matter cannot be decided under Order XII rule 6, C.P.C. Ile also stated that there is no question of any refund being given to the plaintiffs, as sought by them in the listed application.
17. I have heard the rival arguments, perused the record and the case-law on the subject.
18. The admission of the official defendants as pressed by the plaintiffs is only in respect of the reduced area of the property from 2420 sq. Yds. To 2195.22 sq.Yds. In fvour of the plaintiffs. The case of the plaintiffs is that they were originally entitled to 2420 sq. Yds. But if the official defendants have taken stance that the said plaintiffs are only entitled to the lease of the reduced land of 2195.22 sq. Yds. They will be ready and willing to accept the reduced area, and to such extent this shall constitutes an unequivocal admission of the official defendants, requiring no proof. To such extent the contention of the plaintiffs cannot possibly be disputed.
19. The only question now left to be decided is as to what area of parking is required to be left by the plaintiffs as per law. It is true that under the Old Policy the plaintiffs were required to leave an area of 20 feet in front and on the sides,in addition thereto parking as per the bye-laws was required to be left. Even if this standard was applied it did not justify the official defendants to make the plaintiffs to leave 709 sq.Yds as mandatory parking since only 20 ft. Parking was required to be left on the front and the sides outside the building line. However, such policy decision cannot override the provisions of .The Karachi Cantonment Bye-laws, which have been reduced in the form of a Statutory Regulatory Order (i.e, S.R.0.1004(1)/83 dated 19-7-1983). The provisions of an S.R.O. Cannot be overridden or eclipsed by B policy or instructions. I have been able to lay my hands on a judgment of a Division Bench Of this Court reported as Collector Sales Tax and Central Excise (West), Karachi v. Customs, Central Excise and Sales Tax Appellate Tribunal 2005 PTD 53 wherein it has been stated that the provisions of instructions, circulars or circular letters cannot override the provisions of an S.R.O. Which stands on a higher pedestal than the former. Even otherwise after the advent of the Revised. Policy the requirements of parking have been made to conform to the standards of the Building Bye-laws. This provision is beneficial and remedial, as it remedies the defect of the Old Policy so as to bring it in line with the provisions of the Building Regulations contained in an S.R.O. A beneficial or remedial Notification is in any event retrospective in nature. If there is any C authority needed for this proposition reference may be invited to Army Welfare Sugar Mills v. FOP 1992 SCMR 1657, Commissioner of Income Tax v. Shahnawaz Ltd. 1993 SCMR 73 and Elahi Cotton v. FOP PLD 1997 SC 582.
20. The argument on the touchstone of public purpose raised by Mr. Tariq Ali has also no substance as this is not a case where the official defendants have acquired the property under the applicable land acquisition laws after paying compensation. Article 24 of the Constitution clearly specifies that in case any land of a private citizen is acquired adequate compensation is to be given to him/her. It is not a case of the defendants that they have been given any adequate compensation to the plaintiffs. The objection of Mr. Tariq Ali that the legal questions cannot be decided first is again not correct since the mandate of Order XIV rule 2, C.P.C. Is very clear; hence where a question of law goes to the root of the case, it could D be decided first without recording of evidence.
Reference in this regard invited to:--
(i) Sinbbad Travels (Pvt.) Ltd. Lahore v. PIAC Lahore 1990 MLD 2049.
(ii) Raza Hussain v. Haji Qaiser Iqbal 1996 MLD 55.
(iii) ICIC v. Mina Rafique Saigol PLD 1996 Lah.528.
(iv) Ms. Benazir Bhutto v. News Publication (Pvt.) Ltd.2000 CLC 904.
(v) Khairat Masih v. Aziz Sadiq 2004 MLD 943.
(vi) Sinbbad Travels (Pvt.) Ltd. v. PIAC 1990 MLD 1794.
(vii) Muhammad Saleem v. Hafiz Ahmed Din PLD 1975 Lah.
425.
21. The learned counsel for the plaintiffs is again correct in relying upon the cases at para 13 above for the point that the Building Control Regulations are binding on all authorities/parties and the E Court has every power to enforce the same.
22. The prayer of refund contained in para (d) of C.M.A. 3269 of 2009 cannot be allowed since the official defendants in para 9 of their written statement have sstated that the plaintiffs were not charged any additional amount for the excess area i.e, 224.78 sq. Yds.
23. In light of the above discussion both the legal issues framed on 8-5-2009 and reproduced above are answered in the affirmative and the listed application is allowed except prayer (d) thereof. The suit is thus decreed in the latter terms;
24. The listed application being partly allowed, there shall be no order as to costs,