This is a suit for declaration and permanent injunction as the averment that on 19-3-1963 plaintiff jointly with his brother Haji Rehmat Ali purchased leasehold rights of Plot No. 275/A. Sheet G. R. E.
Measuring 1032 sq. Yards situated in Garden East, Karachi with double-storey building thereon. On 24-3-1970 Haji Rehmat Ali gifted his share in the said property to the plaintiff and thus the plaintiff became the sole owner of the said property. The defendant purchased the leasehold rights of the adjacent plot bearing Survey No. 275, Sheet G. R. E. Garden East, Karachi measuring 1436 sq. Yards with a double-storeyed building. The defendant demolished the existing structure and started raising new building from April/May, 1979. It has been averred that the entire land in .The Garden Quarters in the City of Karachi vested in the Government and initially lease in Special Form No. 15-E was granted in respect of both the plots. Condition No. 9 of the lease provided that the lessee shall submit to the Collector and obtain his sanction to a plan and specification of the building to be erected before any building operations are commenced. It also provided that the maximum area on which a building may be erected shall be 1/4th of the entire plot. Under the Bombay Town Planning Act, 1915 an award was made on 7-3-1933 in respect of Town Planning Scheme for Garden Quarters, Karachi which inter alia provided that the maximum area on which the building may be erected shall be 1/4th of the entire plot and no building other than dwelling houses shall be erected within this area. It has further been alleged that Collector of Karachi issued a circular on 29-3-1938 which inter alia required that no building other than bungalow or a cottage shall be constructed in a building plot but flats of superior type may be permitted by the Collector at his discretion provided that the number of tenements in any one building shall not exceed four and no tenement shall contain less than 4 rooms in addition to a kitchen, store, a bath and a W. C. The height of the building shall not exceed 2 storeyes including the ground floor and a minimum distance of 10 feet shall be maintained between any two buildings within the same plot. According to the plaintiffs this circular was in the nature of restrictive covenants running with the land and is binding on all the lessees and/or transferees of the plots in Garden Quarters, Karachi. According to the plaintiff the defendants started construction in April/May, 1979 and first they orally informed that it would be a two-storeyed building including ground floor for residential purposes but later. It transpired that the defendants were raising two blocks of flats of five storeys, that is, ground plus four floors. From the plan for construction which was made available to the plaintiff it appeared that the defendants have been permitted to raise construction of 5 floors including ground floor with conditions that;-
(1) the owners shall obtain `No-Objection' from the Deputy Collector, Karachi before starting the construction.
(2) the right of easement is a matter between the concerned parties with which Karachi Municipal Corporation has no concern and the approval is subject to the owner obtaining No-Objection Certificate of the owners of the adjoining plots. The plaintiff has asserted that the defendants have not obtained any. N. O. C. From the owners of neigh--bouring plots including the plaintiff and has started construction in violation of the terms of approval of the plan. The plaintiff has further alleged that if the construction of the proposed building is allowed the plaintiff's right of privacy will be affected for all times to 'come and the right accruing under the lease. Building Regulation, the Collector's Circular and the covenants running with the land will be put at naught. In these circumstances the plaintiff has prayed that the special permission/No Objection, granted by defendant No. 3, that is, the Deputy Collector of Karachi to defendants Nos. 1 and 2 for the proposed construction on Plot No. 275, Garden East is illegal and without authority and further relief for perpetual injunction has been sought restraining defendants Nos. 1 and 2 from making any construction higher than two storeys (ground plus 1st floor) on the said plot of land.
2. The defendants Nos. 1 and 2 filed their written statement in which besides raising preliminary objection relating to the maintainability of suit, have denied the purchase and gift alleged by the plaintiff. It has been pleaded that the defendants Nos. 1 and 2 hereinafter called the "contesting defendants" purchased the rights, title and interest in the adjoining plot bearing No. 275, Garden East with a double-storeyed building thereon which was 30 feet high and windows which overlooked the plaintiff's plot. It has been alleged that the plaintiff at all material times was aware that the defendants had acquired the property on Survey No. 275 for purposes of demolition and raising the high-rise construction thereon. It has further been alleged that the plaintiff had knowledge of the defendants' building plan and the steps taken by them in implementation thereof. In these circum--stances it has been pleaded that the plaintiff has acquiesced in such construction and the plaintiff is estopped from raising objection. It is further alleged that the objection raised by the plaintiff lacks bona fides and good faith. With regard to the condition imposed by the Deputy Collector it has been pleaded that the same are illegal and have been subsequently lawfully rescinded. As regards circular of 29th July, 1,938 it has been averred that it was merely issued for general guidance and is neither binding nor enforceable. 1t has been denied that there are restrictive covenants running with the land as alleged. It has been denied that the plaintiff or his predecessors-in-interest have been enjoying the easement of light, air and privacy particularly in the manner alleged by the plaintiff. The defendants have further pleaded that after obtaining requisite approval of their building plan they carried out the demolition and effected purchases of cement, steel, wood etc., which were stored at the site. The defendants entered into sub--contracts with various parties and .Prepared a model of the building which was proposed to be constructed and was placed at site for public view. After soil testing excavation work was carried out and after completing the foundation work raised columns upon columns of the roofs of first floor and second floor. The height of the under-construction ground plus second floor was about 32 feet with only one essential window on each floor opening on the side of the plaintiff. The open space between the construction on two plots was about 10 feet on each side but now on their side the contesting defendants have increased it to 15 feet. It has been further averred that the elevation of the proposed building was placed at an angle of 45 degrees of the bungalow claimed by the plaintiff, thus ensuring more than adequate air and light to the inmates of both the buildings. It is alleged that the plaintiff waited till the work of second floor had started and without giving any prior notice, with the object of holding up the construction work thereby compelling the contesting defendants to. Submit to his terms, filed the present suit. He defendants had apprised the neighbouring owners including the plaintiff - about the nature of building and construction. It has further been contended that the defendants have not violated any condition and that the limitations placed were neither operative at the earlier juncture nor they are effective presently. It has also been stated that prior to partition multi--storeyed buildings were constructed in Garden Quarters and with the growth of the city and its continuing increasing need the high-rise buildings have become the order of the day. It has been denied that plaintiff's comfort air or easements or right of privacy will be infringed. It has been denied that the defendants' windows will in any manner invade or interfere the customery right of pardah to which the plaintiffs were put to strict proof. The defendants in these circumstances prayed for dismissal of the suit. On the basis of these pleadings the following issues were framed
(1) Whether the suit is maintainable and/or mala fide ?
(2) Whether the suit is bad for non-joinder of parties ?
(3) Whether the defendants Nos. 2 -and 3 are not entitled to raise construction beyond two floors ?
(4) Whether defendants Nos. 2 and 3 are not entitled to raise construc--tion covering area beyond one-fourth of the total area of the plot ?
(5) Whether construction beyond two floors would interfere with plaintiff's rights of easements and/or privacy ?
(6) Whether construction of building beyond two floors is in violation of the terms of the approved plan ?
(6-A) Whether Circular dated 29-7-1936 has any statutory force. If so what is its effect ? '
(7) Whether permission granted by defendant No. 3 for the construction of the disputed building is legal and valid ?
(8) Whether plaintiff is estopped from objecting to the construction of the building in dispute ?
(9) Whether plaintiff is, entitled to the reliefs claimed ?
(10) What should the decree be ?
3. There are four other suits viz. Suit No. 372/80, Suit No. 644/79, Suit No. 1002/79 and Suit No. 82/80 involving similar points which have been tried together. The learned counsel for the parties have agreed that the evidence of the official witnesses recorded in one suit shall be treated as evidence in all the suits.
4. In the present suit the plaintiff has examined himself and one Muhammad Arshad ~a resident of Bungalow No. 259, Garden East, Karachi. The evidence of witnesses from Karachi Development Authority and. City Deputy Collector's Office was also recorded in Suit No. 372 and shall be read in the present suit so far they are relevant to it.
5. The main grievances of the plaintiff in a nutshell are set out in paragraph 15 of the plaint which is reproduced as follows;-- "That as set out above the blocks of flats under construction, if they go beyond two storeys (ground+ one) ; '
(a) would interfere with plaintiff's rights of easement of privacy causing nuisance to them ;
(b) would be in complete violation of the terms of original lease, the Building Regulations under the Award and the Circular issued by Collector inasmuch as more than two storeys (ground+ one) are not permissible thereunder ;
(c) construction of building beyond two floors without No Objection ofthe neighbours including the plaintiff is a violation of the terms of- the approval of the plan;
(d) covering area beyond 1/4th of the total area of the plot is prohibited by the original lease and the Building Regulations made under the Award."
6. Before considering the issues it would be convenient to first describe the nature of land and the legislative history governing town planning and building control. The land in Garden East, Karachi is granted by the Collector on behalf of the Provincial Government on long term lease under,section 62 of the Sind Land Revenue Code and for that purpose a Sanad lease under section 133 of the Code is issued by the Collector. In the present case the Sanad was issued in a prescribed form which inter alga contained the following conditions- "(a) No further sub-division shall be made without the Collector's sanction.
(b) The lessee shall submit to the Collector and obtain his sanction to a plan and specification of the buildings to be erected before any building operation are commenced.
(c) The maximum area on which buildings may be erected shall be one fourth of the entire plot.
(d) Where the boundary of a plot is a road no building or portion of a building, other than compound walls or entrance gates, shall be erected within fifteen feet of such boundary.
(e) For the purposes of condition (a) above, a verandah which projects beyond the plinth area of a building shall be included in the. Area occupied by buildings.
(f ) The minimum area of a building plot shall be one thousand square yards."
By virtue of Sanad/Lease issued in the aforestated manner only leasehold rights were transferred and the Government remained the owner of the land.
7. I would now briefly state the relevant statutes and circulars which govern Town Planning and regulate the construction of buildings in Karachi. Mr. Syed Sharifuddin Pirzada the learned counsel for the defendants tracing in detail the historical picture referred to the provisions of the statutes which are relevant for the present suit and were promulgated during the century commencing from 1879 to 1979. The first Act is Sind Land Revenue Cod Act (V of 1879) under which Sanad is granted. Section 62 provides that the Collector could require payment of price for unalienated 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.
8. The second statute to be noted is the Sind Town Planning Act, 1915 (Sind Act I of 1915). This 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 areas may or may not be appropriated". After a draft scheme 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 Govern--ment 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 prepared in accordance with this Act. 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-t-1936. With regard to Garden West and East Quarters it was provided that the minimum size of a building plot shall be 1000 sq. Yards and the maximum area on which building may be erected shall be one fourth of the entire plot.
9. Thereafter City of Karachi Municipal Act, 1933 was promulgated. Under Chapter XIII Improvement Schemes 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 1.970). The object was to make provision for the 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 schemes. By section 175 of the Act Chapter XIII of the City of Karachi Municipal Act, 1933 which related to improvement schemes 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 authorised 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 Karachi Municipal Act. The K. D. A. Therefore performed the dual functions of Town Planning and Building Control. Thereafter Municipal Administration Ordinance, 1960 (Ordinance X of 1960) was promulgated. Without repealing Act I of 1915 it purported to consolidate the law relating to municipal administration in Pakistan. 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 commence to erect or re-erect a building unless the site has been approved and the building plan has been sanctioned by the Municipal Committee. Lathe year 1972 Sind 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 Sind Local Government (Amendment) Ordinance, 1979 (Ordinance I of 1979) was promulgated which -provided that in Sind People's Local Government Ordinance, 1972 the "People's" shall be omitted in the title and the text wherever occurring. Thereafter Sind Building Control Ordinance 1979 (Ordinance I of 1979) was enforced -o3- 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 dang--erous and dilapidated buildings in Sind. Section 6 of the Ordinance provided that no building shall be constructed before the Authority established under the Ordinance approved the plan of such building and granted no objection certificate for the construction thereof. It may be mentioned that under a notification issued on 18-3-1979 K. D. A. Was appointed as an Authority. ,It is thus obvious that from 17-3-1979 the functions of building cantrol was vested in K. D. A. Acting as an Authority under the Sind Building Control Ordinance, 1979. This is the uptodate legislative history of the statutes governing Town Planning and Building Control in Karachi.
10. In this connection it is pertinent to refer to a circular of 29-7-1938 and Memo. Dated 1-5-1952.
This circular was issued by the Collector of Karachi requesting all the architects that the height of buildings should not exceed two storeys including the ground floor. Again a Memo. Was issued by the Administrator, Karachi on 1-5-1952 authorising construction of building on the maximum area of 1/3rd of the area of the plot. Although it has not been proved, its existence has not been denied during the arguments. It may also be pointed out that in exercise of powers under section 74 of the Sind People's Local Government Ordinance, 1972 (Sind Ordinance II/72) the Provincial Government Authorised Karachi Municipal Corporation to levy a fee at the rate of Rs. 15 per sq. Yard of the total area of the plot per floor on the construction of additional floor beyond the original permissible limits in all the areas. Now in the background of all these facts I will consider the Issues Issue No. l.-It will be discussed with Issue No. 8.
Issue No. 2.-Not pressed.
Issues Nos. 3, 4, 6, 6-A & 7.-On 21st May, 1978 the architect of defendants Nos. 1 and 2 submitted to the Assistant Commissioner, Karachi, for approval the plans for the proposed construction of a.
Multistoreyed (Ground plus four storeys) residential building on the contesting defendant's plot.
The Assistant Commissioner forwarded the plans to the Architect Control, Karachi Municipal Corporation for their "opinion from the Town Planning point of views". The Town Planning Cell of Building Control Department. Karachi Municipal Corporation granted planning permission and informed the Assistant Commissioner that "The Cell has no objection for multi-storeyed (Ground plus four Storeys) purely residential building from town planning point of view", subject to the condition that additional floor charges are to be paid to the K. M. C. The witness has produced the entire file of the Assistant Commissioner, relating to the disputed plot. From the nothings it seems that reference was made to the `no objection' issued by K. M. C. And it was also pointed out that the land is held on Government H/3/1 Form. Taking into consideration all these facts, permission to construct five storeyed building (Ground plus Four Storeys) was granted. The Deputy Commissioner's Order dated 19-6-1978, is reproduced hereunder :- OFFICER OF THE DEPUTY COMMISSIONER, SOUTH, KARACHI No. CTS/CS-795 of '78: Karachi 19-6-1978.
Read: "(1) An application dated nil from Mr. Ghulam Architect on behalf of the lessees requesting for the grant of .Permission to construct a multistoreyed five storeyed purely residential building on Plot No. 275 Garden East Quarters, Karachi.
(2) Letter No. AC/TPC/63/78 dated 10-6-1978 from the Town Planning Cell, K. M. C. Granting their no objection from the Town Planning points of view for the proposed construction of a multistoreyed five storeyed purely residential building on Plot No. 275 Garden East Quarter, Karachi."
ORDER OF THE DEPUTY COMMISSIONER, SOUTH KARACHI The lessees of Plot No. 275 Garden East Quarters, Karachi are granted permission to construct a five storeyed purely residential building including the ground floor on the above said plot. East storey shall comprise two (2) fiats i.e. In all Twenty (20), each having three bed rooms, one drawing room and other amenities.
This permission in subject to the rules and regulations now in force or hereafter enforced by the Government. No construction of any kind including a balcony is permitted in the compulsory open space from ground to sky. The lessees have also to provide one fire-hydrant on every floor as per the approved design of the Chief Fire Officer, K. M. C. The lessees have also to maintain the privacy of the neighbours. .
Necessary prior permission to start the construction must be obtained from the Deputy Commissioner, Karachi as per the terns of the lease after getting the building plans approved from K. M. C. As usual before the construction is started.
This permission would be withdrawn for the violation of any condition of the lease, rules, regulations of this permission and further action for the forfeiture of the plot will be taken.
(Sd.) for Deputy Commissioner, South Karachi.
Copy forwarded to :-- "(1) The Lesseses.
(2) The Architect Control, K. M. C. (3) The Land Manager, K.. M. C."
On 5-12-1978 the Architect (Control) K. M. C. Approved the plan subject to No-Objection Certificate of the owners of the adjoining plots. However, it so happened that on 17-3-1979 Sind Building Control Ordinance, 1979 was promulgated and K. D. A. Was appointed as an Authority under the Ordinance to perform the duties of approval of building plans which was previously performed by K. M. C. Under section 6 of the Sind Building Control Ordinance 1979 the approval plans were to be submitted within 6 months from the enforcement of the Ordinance before the Authority for its approval under this Ordinance. Consequently the architect of the defendants submitted the plan to the Deputy Controller of Buildings 11, Master Plan Department, K. D. A. Before submitting the plan the defendant's architect had sought clarification from Master Plan Department who had confirmed that "Building Plans for Garden Area are being approved without imposing any condition obtaining No-Objection Certificate from the adjoining owners. It was further stated that this condition has been waived. The plaintiff, however, seems to have protested and made representation. From the file produced as Exh. 8/1 it seems that a letter was prepared cancelling the waiver of condition of producing No-Objection Certificate but it was not issued. The original letter is in the file and on this basis Mr. Sharifuddin Pirzada, the learned counsel for the defendants Nos. 1 and 2, has contended that even if such a letter was prepared the same was never issued and served on defendants and therefore it does not have any valid and binding force. The waiver of condition, therefore,, stands unrevoked. K. D. A. Being the relevant authority to approve the plan have granted their approval from Town Planning and Building Control points of view. It is obvious that while approving the plan necessary steps have been taken to protect the interest of the neighbours.
11. Mr. Ali Ahmad Fazeel, the learned counsel for the plaintiff has contended that in view of Condition IX(b) of the lease which provides that before any building operation is commenced the lessee shall obtain the sanction of the Collector to the specification and building plan and clause (21 of Circular of 1938 which provides that the height of the building shall not exceed the ground floor plus one storey, no valid sanction for a multi-storeyed building could be granted. It has further been contended that the Circular contained only conditions as contemplated by clause ix(b) of the lease. Mr. Syed Sharifuddin Pirzada the learned counsel for the contesting defen--dants has contended that the circular dated 29-7-1938 issued by the Collector was merely a request to the Architects and it was neither instruction, nor, condition as contended by, the learned counsel for the plaintiff, nor the Collector had the power to impose any condition with regard to town planning or building control. To appreciate the contentions of the learned counsel it would be convenient to reproduce the circular; "CIRCULAR The Collector requests that all architects who submit building plans for his sanction in Garden, Lawrence and Tabilram Quarters should observe the following instructions.
GARDEN QUARTERS "(1) No buildings other than bungalow, or a cottage with the necessary outhouses shall be constructed in a building plot but flats of a superior type may be permitted by the Collector at his discretion provided that the number of tenement in any one building plot shall not exceed four and no tenement shall contain less than four living rooms in addition to a kitchen, a store, a bath and a W. C. .
(2) The height of buildings shall not exceed two storeys including the ground floor.
(3) A minimum distance of 10 feet shall be maintained between any two buildings within the same plot.
LAWRENCE QR. & TAHILRAM QR.
(1) The height of buildings abutting on Lawrence Road up to Murad Khan Lane shall not exceed four storeys including the Ground Floor.
(2) A minimum distance of 10 feet shall be maintained between any buildings within the same plot.
(Sd.)
COLLECTOR OF KARACHI.
No. GR. 288 of 1939 Karachi 29th July. 1939.
City Deputy Collector Karachi Z."
A bare reading of the Circular makes it clear that it was a request to the architects. It was not addressed to the lessees or the concerned Government officers. It does not seem to have the backing of any statutory authority nor can it validly create any obligation upon the lessees against whom it is to be enforced. The defendants have led evidence to show that even before 1947 in Garden Quarters a multi-storeyed building called Saifee Building had been constructed. Thereafter it is clear from the evidence that since 1964 permissions have been granted for constructing multi- storeyed building in the Garden East Area. Since 1964 plans for eleven multi-storeyed buildings have been approved. No attempt has been made to establish that these permissions were granted after obtaining no objection from the neighbouring land owners. In the circumstances the Circular of 1938 if in practice does not seem to have been in full force from 1964 onwards. This clearly demonstrates that the Circular at best was merely for the guidance of architects without creating any obligation on the lessee or having any statutory force.
12. It has been contended that the condition imposed by issuing Circular of 1938 could be made under section 62 of Land Revenue Code which is reproduced hereunder :- "62. It shall be lawful for the Collector subject to such rules as may from time to time be made by the Provincial Government in this behalf, to require the payment of a price for unalienated land or to sell the same by auction, and to annex such conditions to the grant as he may deem fit, before permission to occupy is given under section 60. The price (if any) paid for such land shall include the price of the (Crown) right to all trees not specially reserved under the provisions of section 40, and shall be recoverable as an arrear of land revenue."
13. The Collector is authorised to require the payment of price of land and to annex such conditions to the grant as he may deem fit before permission to occupy is given under section 60. The Collector may not have unfettered powers to impose conditions but at the moment I have to consider whether the Circular of 1938 could be treated as a condition attached to the grant. If the intention would have been that the circular is a condition attached to the lease issued in pursuance of clause ix(b) of the lease then it would have been so mentioned or indicated in the Circular itself. l And it would have been addressed to the relevant authorities or to the lessees in general. It is merely a request to architect to submit plans in the manner specified therein. .By this request one can hardly assume that a lessee is bound by it. In my opinion it was not a condition issued under clause ix(b) of the lease.
14. Mr. Syed Sharifuddin Pirzada the learned counsel for the contesting defendants has contended that even this Circular was superseded by the decision taken in a meeting of K. D. A. Held on 19-9- 1968 which inter alia provides as follows;-- "(1) That there is a need of multi-storeyed buildings in the Garden Area--. This is due to the reason that Karachi is expanding very rapidly and this expansion is to be taken up vertically. The central area of the city has become very congested and over-spill from centre is to be taken up by adjoining areas like Garden East and West. In the circumstances, the multi-storeyed construction in this area is not to be discouraged.
(2) That fixing of certain zones for allowing multi-storeyed construction is not reasonable. This would mean preference to some particular depriving the same facility to others.
(3) That fixing certain roads for multi-storeyed building would also be unreasonable because this would mean depriving certain roads from the benefit of multi-storeyed construction.
(4) That a general permission of multi-storeyed construction in the Garden area without imposing restrictions would mean disturbing the light, ventilation and privacy of the plots in the neighbourhood where multi-storeyed construction is allowed.
(5) It has decided that restriction to the multi-storeyed construction should be in such a way so as to not to disturb the light, ventilation and privacy to the neighbourhood plots. This would mean that the set back and light angles for multi-storeyed construction should be fixed in such a way that the neighbouring plots would have the same amount of light, ventilation and privacy as in case of double-storeyed construction. The angles to be observed for multi-storeyed buildings should be as follows
(i) 45 angles from the centre of the front road (which is obtained in a double-storeyed building set back normally on a minimum street width of 30 feet).
(ii) 68 angle from the edge of the other sides of the plot (which is obtained normally in the case of double-storeyed building with the 10 feet set back)."
Each proposal for construction in Garden Area will be readjusted on this basis and the height of the building will also be determined accordingly. City Deputy Collector will be advised in respect of future cases on this basis. It would be desirable to carry out an exercise to see if a minimum plot area and dimensions could be specified for a plot on which multi-storeyed building can be made.
In C. D. C.'s view this would simplify dealing with individual cases." Ahmed Husain Dy. Controller, Building & Town Planning Authority has stated that they were following the aforestated Circular of 1968 and even the new Rules framed under Sind Building Control Ordinance, 1979 contain same Rules and have been submitted to the Government for approval. In 1968 the above decision was taken in view of the representations made by the public. The need for housing is primarily a function of population growth through natural increase or migration by 1968 Karachi City had touched almost its horizontal expansion limits. The growth of population due to unprecedented migration, regular influx of people from all parts of the country, movement of rural population to the fast developing industrial and commercial city of Karachi, population pressure on land and the economic factors compelled the authorities to change the decades old practice which did not fit in the fast changing conditions. It is noteworthy to mention that the 1968 Memorandum seems to be well considered as it has taken care of the interest of the neighbours. The easement rights of the neighbours were safeguarded and in order to afford full ; protection to them the multi-storeyed buildings were required to maintain an angle so that light, ventilation and privacy of the neighbourhood is not violated. It may further be noted that K. M. C. And K. D. A. Had been the relevant authorities for town planning and building control and since 1968 they have been acting upon the decision contained in the Memorandum of 1968. .
15. Mr. Pirzada -further referred to the Gazette notification of the Government of Sind dated 29-5- 1976 issued under section 74 of Sind Ordinance II of 1972 which authorised Karachi Municipal Corporation to levy fee on the plot per floor beyond the original permissable limits in all the areas within its jurisdiction. He contended that even if there was a condition limiting the height of the building to ground and first floor, the same was revoked by the Provincial Government which is competent to do so. By this notification the Provincial Government has aurhorised Karachi Municipal Corporation to levy and realize fee at the rate of Rs. 15 per sq. Yard of the total area of the plot per floor on the construction of additional floors beyond the original permissible limits. This clearly shows that multi-storeyed buildings are allowed to be constructed in any area of payment of the required fee subject always to the building rules and regula--tions. The contesting defendants have paid these charges to K. M. C. Therefore the restriction, if any, imposed on the height or number of storeys shall be deemed to have been revoked.
16. In support of his contention that the Circular of 1938 was merely an administrative instruction and did not have any statutory force, Mr. S. Sharifuddin Pirzada has referred to Muhammad Asghar v. Sajid Begum PLD 1976 SC 435The Supreme Court while referring to the statutory Instruments Act which was promulgated in England in 1946 and had made provision for registration, publication, promoting and prohibitory control of statutory instruments observed as follows;-- "But there are no similar enactments in force in our country for such a control on the statutory instruments and the delegated legislation. This has added to the confusion in distinguishing statutory instruments from purely executive actions. Generally speaking, a statutory instrument means a document which is legislative (as opposed to executive) made by a rule-making authority in exercise of a statutory power. Precisely it is the exercise of the delegated legislative power by the rule-making authority which distinguished a statutory rule from purely executive and administrative instructions. Although the genesis of statutory rules remains the same, some of its visible characteristics were noticed in the reported case of Pakistan v. Shah Abdul Hamid. In distinguishing the statutory rules from office instructions, the Court observed :- 'A rule requires to be expressed with precision and yet to possess generality so as to be capable of application to a large number of cases. If it leaves scope for discretion, that should be expressly provided for. Ordinarily, it is necessary also that the making and promulgation of a rule should be attended by certain formalities e. g.; publication in a Government Gazette. It is not enough that there is no express rule relating to a point to confer upon any. Existing office instruction that there may be the status and validity of a statutory rule.'
Nonetheless, the hallmark of a statutory rule is its legislative character, and is made by a rule- making authority in the exercise of its delegated legislative powers."
Applying the principles laid down by the Supreme Court it seems that this circular cannot be treated as a statutory rule a& neither it has been gazetted nor the plaintiff has been able to show under which delegated[ authority it was framed.
17. Mr. Ali Ahmad Fazeel the learned counsel for the plaintiff has relied upon the Province of West Pakistan v. Ch. Din Muhammad and others (PLD 1964 SC 21where the following observation was made;-- "It is further, argued that even if the memorandum of the 30th of December, 1944, was not an 'order making a rule', as held by the High Court, it certainly constituted administrative instructions having the same effect as statutory rules, as held by this Court in the case of Pakistan v. Sheikh Abdul Hamid. These instructions contained in the Memorandum No. 4423-D of the 30th of December, 1944, had been issued by the Governor himself, who was fully competent even to alter or amend the Rules of service to the detriment of employees concerned."
Relying on the first part of this observation it was contended that the Circular of 1938 constituted administrative instructions having the same effect as statutory rules. The reply to this contention can be found in the last part. The aforestated observation of the Supreme Court does not apply to present case. In the Supreme Court case the impugned "order" was not any office or general administrative order but it was an ' Order" as provided by section 241(3) of the Government of India Act, 1935 and issued by the Governor a competent authority. There was no dispute about the com- -petency or authority to pass it. The only dispute was with regard to the form of "Order". In the present case the form, substance and the competency to issue the circular has been challenged.
18. The next contention of the plaintiff is that under the Final Scheme a condition was laid-down that the maximum area on which building may be erected shall be one-fourth of the entire plot.
Therefore the approved plan providing a covered area of 1/3rd of the area of the plot infringes the condition of the scheme and is illegal. In this regard an administrative Memo. Dated 1-5-1952 was issued by the Administrator, Karachi whereby this condition was related and construction was allowed up to a maximum of 1/3rd area of the plot. Mr. Sarifuddin Pirzada the learned counsel for the contesting defendants has contended that in the year 1952 Karachi was a Federal territory and the Administrator was exercising the powers of the Provincial Government and was thus empowered to amend the scheme. The memo. Issued by the Administrator had the effect of amending the scheme and therefore no exception can be taken to the approval of the plan. In any event it has been. Stated by the witnesses that this condition was not followed and that on all plots' covered area is not equivalent to 1/4th of the area of the plot. This shows that in Gardon East this condition was not followed.
19. Mr. A. A. Fazeel the learned counsel for the plaintiff has contended that if there are rules and scheme in operation and the same are violated, persons who are affected by such violation can sue for enforcement of scheme as framed by the Government. Reliance has been placed on Fazal Din v. Lahore Improvement Trust (PLD 1969 SC 223and on Re: Sri Lakshimlmoni Dassi (AIR 1941 Cal.
391In Fazal Din's case the alteration in scheme made by Lahore Improvement Trust was challenged in a writ petition inter alia on the ground that the procedure laid down for alteration of the scheme has not been followed and the alteration was illegal. The petition was dismissed by the High Court.
The following observation was relied upon by the learned counsel for the plaintiff;--- "It is clear from the above that the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise."
However, at page 239 the following observation has been made;-- "For these reasons I am of the opinion that the Town Improvement Act does not oblige the Improvement Trust to follow the same procedure for the alteration of a sanctioned Scheme as it would have to follow for the framing of a Scheme if the modification or alteration is not of a radical nature or such as to render the Scheme itself impracticable or unfit for the purpose for which it was originally designed."
It therefore follows that it is not every alteration which gives a cause of action to the plaintiff. In order to challenge an action in such matters the plaintiff must show firstly that there is a modification or alteration of a sanctioned scheme which is of a radical nature and would render the Scheme itself impracticable or unfit for the purpose for which it was designed and secondly the plaintiff has a personal interest in the performance of duty and thirdly, such alteration would result in the loss of some personal benefit or advantage or the curtailment of a privilege. In the present case as discussed above and here under the plaintiff has failed to establish these pre-conditions and therefore Fazal Din's case is not of any assistance to him.
20. In the cases of Sr. Lakshmimoni Dassi while referring to the breach of rule 32 framed under the Calcutta Municipal Act, 1923 providing side spaces between the two buildings on adjacent plots it was held that : "I have no hesitation . In holding that as regards rule 32 the case rests not merely upon the fact that general duty has caused a special injury but that provisions and restrictions specifically designed for the benefit of adjacent owner have been disregarded so as to cause the adjacent owner that damage which it was intended to prevent. In my view, the order of mandamus should be made absolute."
20. In the present case, however, as discussed and stated hereunder there seems to be no breach of the restrictive provisions contained in any rule relating to construction of buildings. It may be pointed out that such building rules provide restrictions some of which are for the benefit of the neighbours and some are for the benefit of the owner himself. The neighbour can complain only in respect of breach of such rules which are for his benefit. The provision for construction on the area of the plot if applicable is only for the benefit of the occupants owners of the building that may be built on it and not for the benefits of the neighbours. The plaintiff therefor cannot make a grievance unless he establishes that the construction of flats will be a nuisance to him and will interfere with his rights of light, air and privacy. In Lakshmimoni Dassi's case the above quoted observation was made with reference to the side space which is always for the benefit of the adjacent neighbours.
This decision would, therefore, not apply to the present case.
21. The next contention of Mr. Fazeel is that the conditions laid down in the Circular of 1938 and condition 9(b) of Sanad constitute restrictive covenants running with the land and therefore the plaintiff can enforce them. This contention has clear reference to section 40 of the Transfer of Property Act which reads as follows ;-- "40. Where, for the more beneficial enjoyment of his own immovable property, a third person has, independently of any interest in the immovable property of another or of any easement thereon, a right to restrain the enjoyment (in a particular manner of the latter property or).
Where a third person is entitled to the benefit of an obligation arising out of contract and annexed to the ownership of immovable property, but not amounting to an interest therein or easement thereon, such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right of obligation, nor against such property in his hands."
22. Under section 40 where a person without having any interest in the immovable properly of another or of any easement thereon and for more beneficial enjoyment of his own immovable property has a right to restrain the enjoyment in a particular manner of that (later) property such right can be enforced by a transferred with notice but not against a transferee for valuable consideration without notice. It seems clear that before passing this provision in service the plaintiff should establish that the restriction G sought to be imposed is for the more beneficial enjoyment of his immovable property. Unless it is established benefits under section 40 will not accrue. In the present case as has been discussed and as stated hereunder the plaintiffs have failed to establish this pre-condition.
23. A covenant running with the land is one which "affects the nature, quality or value of the land".
See Dyson v. Frosrer (1909 AC 98It binds the land in its inception Rogers v. Hosegood ((1900) 2 Ch. 388or benefits the land or affects the rent accruing out of the land Mothowson v. Ram Kanai Singh Deli (36 Cal. 675The circular even if held to be valid and enforceable cannot be termed as a restrictive covenant running with the land. It does not affect the nature, quality or value of the land.
It can be only collatoral.
24. Restrictive covenant arises out of a contract which entitles the covenanted to restrain the use to which the neighbouring land is to be put and creates an equitable interest in land. In AIR 1952 Pat.
409 a restrictive covenant has been held to be a negative covenant calculated to restrict user of land.
25. In Rajpur Colliery Co. v. Pushottam Gobil (AIR 1959 Pat. 463law relating to restrictive covenant as contained in para. 1 of section 40 of Transfer of Property Act which is similar to English Law, has been expounded as follows;-- "A covenant is ordinarily personal only the actual parties to it being bound by it unless it fulfills certain conditions. If it does so, it assumes the character of an equitable encumbrance on the land so that its burden runs with the land in accordance with the general principles applicable to all equitable interests, that is, it will bind the land into whatsoever hands it may come, save only a transferee without notice of it."
In this context reference can be made to Halsbury's Laws of England, Vol. 14, 3rd Edo., page 559 which reads as follows :- "1042. Covenants running with the land at law. As between lessor and lessee, both the burden and the benefit of a covenant which touches or concerns the land, and is not merely personal or collateral, run with the reversion and the term at law. Where, however, the relationship of the parties is, for example, that of lessor and under lessee, there is neither privity of contract or privity of estate between them and neither party can sue the other or be sued by him at law upon the covenants in the lease.
As between persons other than lessor and lessee, the benefit of a covenant, whether positive or negative, may run with the land at law, if it touches and concerns the land and if the person claiming the benefit can show that he is entitled to the same estate in the land as that to which the covenantee- was entitled, and it may so run where the Covenantor has never even had any interest in the land and there is no servient tenement but the burden will never run at law. Moreover a covenant relating,, to land may be assignable, either where it is so expressed that an intention that it should be assignable is shown, or where from its nature the attribute of assignability should be impugned to it. A covenant made after 1881, operates to bind the real estate as well as the personal estate of the covenantor, subject to the expression of an intention to the contrary.
1043. Covenants running with the land in equity. The equitable doctrine relating to restrictive covenants is confined to covenants of a negative nature, for equity will not aid in enforcing positive covenants. It is sufficient if the covenant is negative in substance, though not in form and a covenant partly positive and partly negative, if severable, will be enforced so far as it is negative.
Aconsiderably wider range of persons can sue and be sued in equity on restrictive covenants, providing certain conditions are present, then was possible at law. There is, for example no need for there to be privity of estate between the -plaintiff and the defendant; the burden of restrictive covenant entered into between a vendor and purchaser may pass in equity and an underlessee, or other occupier may be bound by such a covenant."
It may be noted that the plaintiff has pressed two conditions as restrictive covenant, viz. (1) condition placing restriction on the number of storeys and (2) condition providing covered area to be -- th of the area of the plot. Applying the test laid down and the aforestated discussion they can hardly be termed as restrictive covenants running with the land.
26. Mr. Syed Sharifuddin Pirzada the learned counsel for the defendants contended that the condition for obtaining No-Objection Certificate from the neighbours initially imposed, while approving the plan did not have any validity and sanction under law. It is true that up to 1968 there seems to be a practice that such No-Objection Certificate was required but after considering the view point of the builders, owners, neighbours and public interest which at that time demanded a well-considered planning to meat the growing population of Karachi this practice was abolished.
By virtue of the decision -taken by the authorities concerned it was decided to permit construction of multi-storeyed building in Garden East area. However, in order to avoid disturbance to the light, air and privacy of the neighbours certain res--trictions were placed. It provided set backs and angles for multi-storeyed buildings in such a manner that the neighbouring plots should enjoy the same amount of light, ventilation and privacy which they would have enjoyed if a double storeyed building would have been constructed. In the face of these facts and in the absence of any provision of law or rule requiring No Objec--tion Certificate from the neighbours it is hardly possible to contend that the approval of the plan for construction of multi-storeyed building is illegal as No Objection Certificate was obtained from the adjoining neighbours. The learned counsel for the contesting defendants has relied upon District Magistrate, Lahore v. Faqir Syed Fayyazuddfn PLD1965SC371,in which the action of the District Magistrate withdrawing the No Objection Certificate for con--struction of cinema house which was granted to petitioners' predecessor, was challenged. The Supreme Court came to the conclusion that although Cinematography Act and the rules did not provide for obtaining No Objection Certificate "the practice grow up from 1935, in pursuance of certain instruc--tions issued by Government, of first obtaining a No Objection Certificate from the District Magistrate before commencing the construction of a Cinema house at a particular site". In these circumstances the Honourable Supreme Court observed as follows;- "It is after these instructions of 1935 that this practice of issuing No Objection Certificate grow up, but it cannot be said from this that the grant of such a No-Objection Certificate legally fettered the discre--tion of the licencing authority."
Relying on the aforestated observation it has been contended that as the No-Objection Certificate from the adjoining neighbours did not have any legal sanction K. D. A. Was justified in approving the plan without it. The aforestated judgment of the Supreme Court completely covers the present case. The non-production of no-objection certificate from the neighbouring owners did not preclude the licensing Authority from approving the plan. My findings on Issues Nos. 3, 4, 6, 6-A and 7 are as follows;-- Issue No. 3.-Defendants 2 and 3 are entitled to raise construction beyond two floors.
Issue No. 4.-Defendants Nos. 2 and 3 are entitled to raise construction covering area beyond 1/4th of the area of the plot. .
Issue No. 6.- In the negative.
Issue No. 6-A.-In the negative.
Issue No. 7.-In the affirmative.
Issue No. 5.-Now the question remains to be decided is whether the construction of multi-storeyed building will interfere with the plaintiff's right of privacy, light and air. Before considering this question it would be proper to refer to the pleadings. The plaintiff has pleaded that ever since the constru--ction of the plaintiff's bungalow in 1939 its owners have enjoyed the easement of light, air and privacy. It has been pleaded that the construction of blocks of flats exceeding two storeys (ground plus one storey) will interfere with physical comforts of the building and right of privacy enjoyed by the plaintiff. It has been pleaded that the third and fourth storey of the building will overlook the plaintiff's bungalow and will affect its enjoyment specially women folk and will invade and interfere with the customary rights of pardah. The defendants have denied these allegations and pleaded as follows;- "The height of the under construction ground plus 2nd, was about 32 ft., with only one essential window on each floor opening on the side of the bungalow on Plot No. 275-A. The. Space originally between the two properties was about 10' on each side. The defendant took care to increase the space from 10' to 15 Ft., and the elevation of the proposed building was placed at an angle of 45Q degrees of the bungalow claimed by the plaintiff, thus ensuring more than adequate air and light to the inmates of both the buildings."
The plaintiff has examined Muhammad Munir, the plaintiff who has stated that his right of light and privacy will be disturbed. He has however admitted that two windows on the ground floor and two on the first floor in the defendants' demolished bungalow were over looking his bungalow. He further admitted that the window on the Ist. Floor and 2nd floor could be seen from his bungalow.
He further stated that his women folk do not observe pardah. The second witness Muhammad Arshad is a resident of Plot No. 259 which is situated opposite the plot of the plaintiff and defen-- dants. There is a 30 feet wide .Road in between. There are several trees inside his bungalow on the boundary wall with a height up to first floor facing defendant's plot. He has stated that his women folk "observed" pardah which means that presently they do not observe pardah. He has merely stated that his right of Privacy will be disturbed.
27. First I will deal with the claim of the plaintiff for infringement of their right of easement to light and air. The pleadings and the evidence of the parties have been briefly stated in the aforestated paragraph.
28. Mr. Syed Sharifuddin Pirzada the learned counsel for the defen--dants has referred to AIR 1914 P C 45 which has followed Coils v. Homes & Colonial Stores Ltd. (1904 A C 179) which has been reaffirmed by House of Lords in 1907 A C 1. Citing these cases the learned counsel for the contesting defendants has contended that the test for determining whether a particular building will infringe the right of light and air is whether obstruction complained of is a nuisance. Therefore even if there is a partial impairment of light and air it may not in the facts and circumstances of a particular case be treated as an infringement of easements. In this regard passingly I may refer to the contention of the learned counsel for the contesting defendants that a lessee cannot acquire a right of easement and reliance was placed on AIR 1943 Born. 443 and AIR 1971 SC 1872. Mr. A. A.
Fazeel on the other hand has referred to AIR 1941 Sind 211 and has contended that the lessees have a right of easement. In the case of Chapsi Bhai v. Pure--sottam (AIR 1971 SC 1872) this difference of opinion between the two superior Courts on the question of lessees' right of easement was noticed but the question was left open. In the present case also I do not find it necessary to determine this question as the judgment can be pronounced on other points as well which have been argued at length.
29. Reverting back to the test laid down in Colls's case it may be noticed that in the case of Chapsi Bhai the Supreme Court of India while relying upon it made the following observation :- "As to the light and air through the windows on the western-side, it is clear from explanations II and III to S. 33 that to constitute an actionable obstruction of free passage of light or air to the openings in a house it is not enough that the light or air is less than before. There must be a substantial privation of light, enough to render the occupation of the house uncomfortable, according to the ordinary notions of mankind."
Putting the present case to the test laid down by the aforestated authorities it seems that the plaintiff has failed to prove that the interference by the construction of flats on defendants' plot would render the occupation of the house uncomfortable according to ordinary notions of mankind. The evidence on the point is meagre and insufficient on this issue. Only two witnesses viz. The plaintiff No. 1 and P. W. 2 have been examined who have stated that the construction of flats would materially interfere with their right of easement relating to the light and air as previously enjoyed by the plaintiff. The plan submitted by the defendants which has been approved by the Building Control Authority, the witnesses examined by the defendants which include the officials of K. D. A., Architect and the defendants employees have deposed that the construction of these flats has been designed on a certain angle as required by the Building Control Authority. The objection of maintaining the angle is that the neighbours should not be deprived of the light and air which they were enjoying before the construction of the flats. In the face of this evidence the plaintiff has merely stated that his right will be materially affected but he has not stated in what manner and how it will be materially affected. A mere statement to this effect without specifying the manner in which it will be affected cannot prove the plaintiff's claim. Even an expert or an architect has not been examined to show that in spite of the angles required to be maintained, the flats on completion will materially affect the right of easement claimed by the plaintiff. Admittedly the distance between the block of flats and the plaintiff's bungalow is 25 feet and therefore the question of affecting, blocking or interfering with the light and air in the manner suggested by the plaintiff will not arise. It, therefore, follows, that the plaintiff has not succeeded in Proving his claim.
Before a plaintiff succeeds in such claim he has to establish that the obstruc--tion and nuisance complained of or apprehended has been or may be caused by such building. It cannot be proved by mere making such allegations.
30. The objection of the plaintiff is that his customary right of pardah and privacy will be disturbed.
Mr. Syed Sarifuddin, Pirzada the learned counsel for the defendants has contended that in order to establish customary right of pardah and privacy the plaintiff has to plead and prove the same. He further contended that the plaintiff should not only establish the custom of pardah by substantial evidence but in the same manner he should also establish in what manner it has been invaded and infringed. Mr. Ali Ahmad Fazeel the learned counsel for the defendants has contended that the customary right of pardah is a well recognized custom in India and Pakistan of which judicial notice has been taken in several authorities and, therefore, it is not necessary that it should be specifically proved. On the other hand, Mr. Syed Sharifuddin Firzada has referred to a string of cases to establish that the consensus is that the customary pardah should be proved by substantial evidence. He has first cited the case of Shah Muhammad v. Ramzan AIR 1921 Sind 155,and pointed out that this was a case from District Larkana in which it was observed that the local custom of privacy in any particular locality is a question of fact. It was also held that a local custom need not be shown to be immemorial, if it is sufficiently certain and reasonable to satisfy the legal requirements of a valid custom. After these observations the Court laid down the following principle for granting injunction "On this point. The District Judge has rightly considered the question whether the threatened disturbance of his easement would amount to a nuisance and has answered "this in the affirmative. Mr. Tabilram's contention that a mere invasion of plaintiff's right of privacy is sufficient to entitle him to au injunction is incorrect, as is shown in Framji Shapurji Patuck v. Framji Edulji Davar. There must be a threat of disturbance sufficient- to cause substantial damage to the plaintiff, or in other words, it must amount to a nuisance, which in law implies substantial damage.
As stated in Halsbury's Law of England, Vol. XXI, Article 853, page 510, the damage must not be merely sentimental or fri-fling but in considering whether the property of the plaintiff is in fact injured, or his comfort or convenience in fact materially interfered with, by an alleged nuisance, regard is had to the character of the neighbourhood and the pre-existing circum--stances (Pollock's Law of Torts, 7th Edition, page 401). In my opinion, the Court should, therefore, attach weight to the feelings of persons who follow the pardah custom, such as live in larkana, and avoid regarding such feelings as sentimental or trivial in nature."
However, in this case the Court had come to the conclusion that on evidence the right of customary pardah had been established. Reference was made to Pir Agha Muhammad Hussain and others v. Ellies Hajf Saddigu (AIR 1948 Sind 36in which while referring to section 54, Specific Relief Act, the following obser--vation was made;-- "As this section makes it clear there must, before a perpetual injunction may be granted, be an invasion or a threat of invasion of the plaintiff's right to or enjoyment of his property and it is manifest that the mere opening of a window by a man in a building in his own property cannot constitute an invasion of or a threat to invade the rights to or enjoyment of, his neighbour's property.
This is of course subject to those rare cases in which a ":custom as to right of privacy is provable.
There is no question in this case of such a custom."
31. Mr. S. Sharifuddin Pirzada then contended that from amongst all the High Courts of India it seems that the High Court of Allahbad has taken -a very strict view and has rigidly enforced the - customary right of pardah. He, has, therefore, referred to the leading judgments of that Court from 1888 up to 1981. The first case is of Gokal Prasad v. Radho (I L R 10 All. 358which recognised the existence of customary easement of privacy in United Pro--vinces and observed that where such right is disputed its existence and enjoyment must be decided upon its own facts. Thereafter reference was made to the case of Bhagwandas and others v. Zamurrad Hussain and others (AIR 1929 All. 676in which similar observation was made. Reference was made to B. Nihal Chand v. Mst.
Bhagwan Dal AIR 1935 All. 1002) in which judicial notice of a particular custom which was of general prevalence since long was taken and following observa--tion was made;-- "When a particular custom is of general prevalence and is commonly recognised, it is open to aCourt to take judicial notice of such custom having the force of law under section 57, Evidence Act, and it is there--fore not necessary that there should be evidence produced in each case to establish such a custom. Indeed, in many villages where the custom has been so well recognised that no one has dared to infringe it, there might be no instance to prove that the custom was denied and upheld on a previous occasion."
In this case Suleman, J, though it fit to take judicial notice of customs provided that particular custom is of general prevalence and is commonly recognised. Before a judicial notice of a custom is taken in view of this authority these two pre-conditions have to be satisfied.
32. Mr. S. Sharifuddin Pirzada then referred to Basal v. Hassan Raza Khan (AIR 1963 All. 340in which B. Nihalchand's case was disapproved and it was held that the custom of ,pardah is unreasonable and the view expressed in Gokal Parsad's case, was decide d75 years ago when "pardah was common amongst Muslim and Hindus but as in the present time the pardah is practically extinguished amongst the Hindus and discarded by many sections of the Muslims". "any restriction today for enforcement of right of pardah would hardly be reasonable. Today the seclusion of women is completely incon--sistent with the special philosophy on which our constitution is founded."
It, therefore, seems that the view expressed in Basal v. Hasan Raza Khan was more influenced by the special and cultural changes which are now phenomenal. On Indian Horizon after- independence in 1947. Thereafter reference was made to Ghaneshilal v, Smt. Rasool Fatima (AIR 1977 All. 118) which has dissented from the Basai's case, In this context, lastly a reference was made to a recent case of Diwan Singh v. Inderjeet (AIR 1981 All. 342which approved the obser--vations made in Basai's case. It, therefore, seems that there is a sharp conflict of judicial opinion in the same High Court which has been expressed within a course of 18 years. The customs do not change so fast. This view which is gaining currency in that Court is a recent development after independence caused by social and cultural upheavals, economic growth, social philosophy and above all an attempt to emancipate from the old tradi--tions of the past which are bring looked upon in the Indian Society as a legacy of the past slavery.
33. In this context the last authority cited by Mr. Syed Sharifuddin Pirzada is the case of Fazale-Razik v. Syed Zaman Shah and others (P L .D 1980 SC 193Having noticed the leading cases some of which have been referred above the following dictum was laid down;-- "Further, before such custom can be recognised it will be necessary to investigate whether it has the essential attributes of a custom, namely, that it must be immemorial, it must be reasonable, it must have con--tinued without interruption since its immemorial origin, and it must be certain in respect of its nature generally as well in respect of the locality where it is alleged to obtain and the person whom it is alleged to affect. It is then that the custom acquires the force of law and judicial notice can be taken of it under section 57 of the Evidence Act. It was thus that Sulaiman, C. J:, in B.
Nihal Chand and another v. Mst. Bhagwan Dai took judicial notice of the particular custom as it was of general prevalence and commonly recognised. A more opinion as to the existence of a custom by the Court as being in existence and taking judicial notice of it is far from fulfilling the essential require--ments of taking judicial notice of a notorious fact, namely, the customary easement. Therefore the Courts below were clearly in error in holding the right of privacy to exist when it was not specifically pleaded nor evidence was led to establish it."
It is, therefore, now well settled that in order to rely on customary easem--ent of pardah or right of privacy it has to be pleaded and proved by evidence. Such custom should be specific, certain and continuous from time immomorial. Such customary right is different from easement acquired by prescription as observed in Harisedhan v. Radhika Parsad (66 C L J 270and Abejuddin Shah v.
Abdu Subhan Sarkat(PLD 1967 Dacca 135In cosmopolitan towns like Karachi it is difficult to claim right of privacy attached to the property (Ref. Mian Hafizullah v. Muhammad. Hussain (1938 P L R 483). As observed in Nihalchand v. Fazal Din (1901 P L R 671the Plaintiff claiming customary right of domestic privacy should prove that such custom prevails and is in operation in the community or section of society to which he belongs and it has gained such currency and noteriety amongst this community and locality that by common consent it is obligatory on the owners of land in that locality to observe, respect and implement it.
34. Mr. A. A. Fazeel the learned counsel for the plaintiff referring to these cases of the Allahabad High Court and the Sind Chief Court has con--tended that the custom of privacy existed in Sind as is established by the cases of Shah Muhammad and Pir Agha Muhammad Jan and, therefore, it should be judicially recognised in all the cases of Sind. While referring to Bhagwan--das's case reliance was placed on the observation that pardah is the custom of the country and it was contended that as this custom has obtained judicial recognition, therefore, even if the party pleading it lacks in a total proof It should be recognised and accepted. Mr. Fazeel also referred to Maharaj Komar Mohammad Mahmud Hasan Khan v. Hafiz-Abdul Haq and another (AIR 1945 Oudh 15where it was observed that "right of privacy is well established in this country" (India) and right of privacy is assumed to exist in all the Indian Towns, The contention made by the learned counsel for the plaintiff does not bear scrutiny of the pronouncement made by the Supreme Court of Pakistan in Fazale Razik's case. The learned counsel for the plaintiff referred to the ob--servation in Fazale Razik's case that "it would appear from the case of Mian Hafizullah and Nihalchand that this customary easement was not held to exist in the province of Punjab but it had to be established. No case was cited by the counsel for the respondents to show its existence in the N.-W.
F. P." and contended that if the cases cited by him would have been referred probably the decision would have been different. The contention is hypothetical in nature because the Supreme Court has considered all the leading cases on the point from Indian High Courts of Allahabad, Oudh and has also referred to Sind case and made considered and authentic observation which is binding upon the Courts in Pakistan. With regard to the contention of the learned counsel for the plaintiff suffice to say that after independence the conditions, customs and traditions in Karachi have not remained the same as in other dis--tricts of Sind. Even before Partition the population in Karachi particular Garden East area has been cosmopolitan in nature with a mixed population of various communities, race and religion. In spite of the observations of the Indian High Courts referred by the learned counsel for the plaintiff in the cases of Mian Hafizullah and Nihalchand as observed by the Supreme Court in Fazle Razik's case, customary easement was not held to exist in the Province of Punjab and more expression of opinion as to the existence of custom by Court did not absolve the party from pleading and proving the existence of the customary easement of privacy.
Therefore, if a plaintiff claims customary right of domestic privacy in Karachi he has to plead and estab--lish it according to law.
35. Now putting the plaintiff's case to the test we find that the plaintiff has not been able to prove the customary right of privacy in the manner and according to the principles laid down by the Supreme Court. The plaintiff himself has not led any evidence that customary privacy or pardah is observed by his family members, community and residents of his locality. The plaintiff's family does not observe pardah. An apprisal of plaintiff's evidence makes it clear that the plaintiff has failed to prove the customary right of privacy claimed by him.
Issues Nos. 1 & 8.-The defendants have led evidence to the effect that the plaintiff had full knowledge of the plan and was aware of the nature of con--struction as the model of the building had been placed at the site. It has further been stated that the plaintiff discussed the matter with the defendants and had agreed to parchase the entire construction for Rs. 20,00,000 but backed out. In the words of the case of Ha/1 Muhammad Yunus PLD 1956 Kar. 755"if a person has acted to his detriment or altered his position on the basis of any declaration, not or omission of another person, that other person will not be allowed to go back upon it to the detriment of the opposite party". In the present case the defendants did not start construction on the representation or any act of omission or commission of the plaintiff and altered his position. In the facts and circumstances of the case the question of estoppl does not arise. My finding is in the negative.
Issue No. 9.-In view of the finding given on the above Issues the plaintiff is not entitled to claim relief in the suit.
The suit is dismissed with no orders as to costs.