' This is a suit for declaration and permanent injunction filed by the defendants No, 1 being an association of the residents of Iqbal Colony Martin Road, Karachi. Defendants Nos. 2 and 3 are its members. It has been alleged that there are 120 houses in the said colony who have settled there since long and it was on 28-10-1961 that on cluster basis the numbering was carried out by the Settlement Department and P. T. O. Was issued on 24-9-1963. A P. T. D. Was issued on 27-1-1974 in favour of all the allottees by the Settlement Authorities, in respect of Survey No, G.R.W. 44/2, 3 and 4 measuring 18,208 square yards. It has been alleged that Shahid Mansoor, Shakir Mansoor, Gobind Ratan Kumar, Vijay Kumar, Hameeda, Zarina and Khairunnisa through a registered sale-deed, dated 28-1-1981 purchased plot No, 443/3/1/1, Garden West, Karachi measuring 5,053 square yards situated at Lyari River Bed. The said purchasers formed themselves into a partneship firm which was registered in the name and style of Friends Associates Association. The defendant No, I got their plan for construction of 5 storeys building on the said plot approved from defendant No, 3 which was granted on 10-1-1980. A No-Objection Certificate was also granted by the Commissioner on 15-3-1981 for construction of 5 storeys building including ground floor plus four floors. It is alleged that under the permission granted to the defendants No, 1 they were to maintain the privacy of the neighbours and that a prior permission to start the construction was to be obtained from Deputy Commissioner (South) after the building plan had been approved. It is alleged that the defendant No, 3, agreed to grant approval of building plan subject to the condition that No- Objection Certificate should be obtained from the Chief Engineer and Chief Fire Officer, K. M. C. And defendant No, 4 before starting construction. The defendant No, 4 granted the N.O.C. For construction and sale ,and advertisement of flats and shops under the name and style of MID-CITY APARTMENTS on the said plot purchased by the partners of the defendants No,
1. The plaintiffs have alleged that having come to know about it they protested with the defendant No, 1 on the ground that the proposed building will interfere with their right of privacy and easement of light and air and will be a constant source of danger to the plaintiffs and the neighbours as the building was being constructed on a narrow road and shallow land but no heed was paid to it. The plaintiffs also approached various authorities. How-over, the defendant No, 1 published their advertisement in daily Jang on 17th June, 1981. It has been alleged that the defendant No, 7, the Deputy Commissioner, granted permission to start construction of 5 blocks of 5 storeys purely residential building in accordance with the building plans duly approved by the Master Plan Department. It is alleged that the defendants No, 1 in spite of protest of the plaintiffs and in violation of No-Objection Certificate dated 15-3-1981, 14-4-1981, 7-6-1981 and 2-7-1981 continued with the construction. The Mayor was approached and he questioned the approval granted for construction of multi- storeyed building. It has also been stated that in the broachure the decription, location and the particulars of the proposed building has falsely been given merely to mislead the public. Iqbal Colony, Nafisabad and Jamaat Khana which are in the East have not been shown in the location plan. It is alleged that defendant No, 3 by their order dated 15-9-1981 stopped the work of the multi- storeyed building and a petition was filed by the partners of defendants No, 1 which suspended the order of the defendant No,
3. The defendants have started construction of the building and it is alleged that the same would violate the rights of privacy and sement of light and air of the plaintiffs.
2. Mr. Syed Nasiruddin the learned counsel for the plaintiffs has contended that the defendants No, 1 are constructing the building at a shallow and without taking into consideration that the earth is not firm and forms part of the Lyari River Bed. He has contended that the material used by the defendant No, 1 is substandard and any building raised on such land with such material is likely to collapse and cause damage to the life and property of the residents of the locality. From a perusal of the facts as contained in the plaint it is clear that the defendants No, 1 have obtained permission of all the necessary authorities, a is required under law. The defendants have, therefore, made out a prima fade case of their entitlement to raise the construction. Unless it I established by cogent, sufficient and convincing evidence at this stage that such a construction will obstruct with the plaintiffs' right of easement of light, air and privacy which will amount to a nuisance the defendant No, 1 cannot be restrained from raising the construction according to plan. At this stage it would not be proper to enter into merits of the A case. However, on the allegations in the plaint and the contentions raised by the learned counsel for the plaintiffs it is clear that as the Building Control Authority have approved the plan it shall be presumed that they would have checked the location and the possibility or raising a multi-storeyed building in that particular area. The plaintiffs have not produced even a certificate of any architect to show that the plan for multi-storeyed building on that land is not feasible. Merely on the basis of apprehension of the plaintiffs that the building will be dangerous for their life and property no injunction can be granted restraining the defendant No, 1 from constructing the building.
3. Mr. S. Nasiruddin, the learned counsel for the plaintiffs has contended that the Building Control Authority by its order dated 15-9-1981 has suspended the approval and, therefore,, the defendants No, 1 cannot raise the construction. Mr. Syed Sharifuddin Pirzada the learned counsel for the defendants No, 1 has contended that this order was challeged in Writ Petition No, D/888/81 and by an order dated 20-10-1981 the operation of the order of the Building Control Authority was suspended. In these circumstances it is clear that the approval granted by the Building Control Authority, the defendants No, 3, is still in operation and holds the field.
4. Mr. S. Nasiruddin then contended that the proposed building will affect the plaintiffs' right of easement of light, air and privacy. The description of the proposed building and the existing construction can be fully ascertained from the plaint, photographs and the affidavits filed by the parties. An album containing photographs of the locality and the existing construction have been produced by the defendants No,
1. In between the construction and the houses of the members of the plaintiff there is a road on which two vehicles can freely move. The defendants No, I have left 49 feet space all around the building. There will be n windows opening on the side of the plaintiffs' colony except the ventilators. There exist many double storeyed buildings in that locality. According t the rules followed by the Building Control Authority, to protect the right of light, air and privacy a multiotereyed building is to be erected on a certain prescribed angle. The plaintiffs have not even alleged that such an angle has not been maintained. In view of these facts heavy burden lies upon the plaintiffs even at this interlocutory stage to prima facie establish that the plaintiffs' right of light, air and privacy has been disturbed. In my opinion the plaintiffs have failed to establish a prima facie case.
5. Mr. Syed Sharifuddin Pirzada the learned counsel for the plaintiffs has relied on Fazle Razig's case
(1) and 1981 CLC 1566 and has contended that the plaintiffs' pleadings do not make out a prima fasie case for infringement of right of easement of light, air and privacy. According to the learned counsel for the defendants No, 1, the plaintiffs' members, were granted PTD on 17-1-1974 and it is this date from when they shall be deemed to be in legal occupation and, therefore, they cannot claim any prescriptive right. The next objection of the learned counsel for the defendants No, 1 is that the plaintiff No, 1 is a fluctuating body comprising of inhabitants of the locality and it cannot file a representative suit. Reliance has been placed on AIR 1941 Pat. 133.
6. Considering all the facts and circumstances, I am of the opinion that the plaintiffs have not been able to make out a prima facie case. The defendants No, 1 have obtained approval of the plan and have raised construction in one block upto 3rd storey. In these circumstances the balance of convenience is in favour of the defendants No, 1 and if the construction is stopped they will suffer irreparable injury.
' In the result the application is dismissed with no order to costs.
(1) PLD 1980 SC 193