' After purchasing a plot of land situated in Mohallah Usman Abad, Chiniot from one Nassir Muhammad by means of a registered sale-deed dated 21-8.1968, executed by his general attorney Rulia son of Isa, petitioner submitted a building plan on 1-8-1973 to the respondent Municipal Committee for sanction but did not get any intimation about its disposal and after some waiting, he carried out the proposed construction on the assumption that since he had not been conveyed its rejection, therefore, the building plan submitted by him was deemed in law to have been sanctioned. However, on 9-10-1973 respondent-Committee issued a notice to Rulia requiring him to demolish the house in question. This notice is stated to have neither been addressed to the plaintiff nor served upon him but on its basis the respondent-Committee threatened to demolish the house of the plaintiff who was thereupon obliged to file a suit on 1-12-1973 for grant of a decree of permanent injunction restraining the respondent-Committee from either demolishing the house of the plaintiff or anywise putting the said notice dated 9-10-1973 into effect.
' The defendant-Committee admitted the submission of building plan by the plaintiff but contested the suit with the averment that previously Rulia had raised a construction without sanction by making encroachment which was got removed and later plaintiff had submitted a building plan about the same site which, however, was rejected within one month and plaintiff was informed accordingly. A number of technical pleas were also raised in opposition of the suit, which was accordingly set down to be tried on the following issues :- "(1) Whether the plaintiff was required to serve the defendant with a notice prior to the institution of this suit ? If so, to what effect ?
(2) Whether the plaintiff has got the locus standi and cause of action ?
(3) Whether the suit is bad for non-joinder of necessary parties ?
(4) Whether the plaintiff is estopped by his conduct to institute this suit ?
(5) Whether the plaintiff has not come with clean hands ? If so, to what effect ?
(6) Whether the notice dated 9-2-1973 (sic.) issued by the defendant is illegal, void, against facts and in operative on the rights of the plaintiff ?
(7) Whether the plaintiff is entitled to the injunction prayed for ?
(8) Relief."
' Necessary evidence was led by the parties wherein plaintiff got his own statement recorded as P.
W. 3 and two more witnesses each were examined on both the sides. Apart from proving the site plan of the existing house in suit as Exh. P. 1, plaintiff also got proved registered sale deed regarding the site as Exh. P. 2 and produced a receipt about the deposit of necessary fee with the defendant as Exh. P.
4. He also produced the impugned notice, issued to Rulia as Exh. P.
3. Defendant, however, produced the plaintiff's building plan as Exh. D. 2 which was shown to have been rejected by the -Administrator of the Municipal Committee by his order dated 30-8-1973, which was got proved as Exh. D.
1.
3. After considering the evidence of the parties, learned Civil Judge held that no notice was shown to be necessary to have been served on the defendant before the institution of the suit and found also that Rulia was not a necessary party to the suit. Defendant's plea of estoppel against the plaintiff was also rejected alongwith the one regarding his not having approached the Court with clean hands. Learned Civil Judge clearly held that the impugned notice (Exh. P. 3) was neither addressed to the plaintiff nor did it contain any description of the property where to it related but refused to attach any importance to these facts for the reason that Rulia was not a party to the suit and observed also that the impugned notice (Exh. P. 3) had not been proved to have been given to him, by Rulia. He remarked even that it was the duty of the plaintiff to have proved that he had not been served with a notice by the defendant. Without assigning any reason, he observed also that it was not believable that the plaintiff may not have been aware about the passing of the order (Exh.
D. 1) dated 30-8-1973 which he had not even challenged in the suit. With the observation that it was the 'duty of the plaintiff to have pursued the matter with the defendant, trial Judge concluded the the plaintiff was bound to get proper permission from the defendant but since he had raised the construction on the plot without getting the plan sanctioned from the defendant, therefore, he was not entitled to the relief claimed in the suit and, without attending to the legal provisions prevailing on the subject, proceeded to dismiss the suit for the plaintiff by his judgment dated 30-7-1977.
4. In an appeal there against filed by the plaintiff, findings of the trial Court were assailed on the ground also that since the requisite time for sanction had run out, therefore, plaintiff was within his right to have raised the construction on the plot owned by him, after due waiting but no notice was served on him, therefore, he was entitled to be granted the relief claimed. Learned District Judge heard the appeal and even though he affirmed the trial Court's findings under issues Nos. 1, 3, 4 and 5 by concurring with it and even reversed its findings under issue No, 2 with the conclusion that the plaintiff had got the locus standi to file the suit, yet, he disbelieved the plaintiff's assertion regarding the absence of intimation to him about his building plan on the mere basis that an order to reject it had in fact been passed within one month as was deposed to by D. W. I, Municipal Sub-Engineer and finding that the plaintiff had not challenged that order in his suit, he proceeded to conclude that the plaintiff had raised his construction before the expiry of the period of sixty days provided under section 81 of the Punjab Local Government Act, 1975. Consequently, he approved the action contemplated by the Municipal Committee and holding that the plaintiff was not entitled to the grant of permanent injunction, by his judgment dated 8-1-1978 dismissed the appeal. The plaintiff has now come up to this Court on revision.
5. It is argued that whereas the trial Court did not advert at all to the legal provisions applicable in this case, learned District Judge misdirected himself in relying upon the provisions of the Act of 1975 to determine the dispute relating to the year 1973, whereto the provisions of section 77 of the Municipal Administration Ordinance X of 1960 applied and not those of the Act of 1975. Learned counsel has 'Also argued that there is not even an iota of evidence available on the record that there may have existed any street on the site or that the plaintiff may have made some encroachment of any kind, therefore, refusal of relief to the plaintiff in the appeal below is an unwarranted refusal of exercise of jurisdiction. Learned counsel has also pointedly referred to the failure of the defendant to prove that the plaintiff may have ever been conveyed the alleged refusal to sanction his building plan, wherefore, neither could he be expected to have challenged it in his suit nor could he be held bound by the notice (Exh. P. 3) admittedly issued to Rulia, not a party, for demolition of the house of the plaintiff.
6. In reply, however, learned counsel for the respondent has pimply reiterated the grounds which prevailed with the learned District Judge for dismissal of the appeal before him.
7. After giving my anxious consideration to the contentions of the learned counsel for the parties, I have come to the conclusion that the plaintiff could not be denied relief with reference to the Punjab Local Government Act, 1975, even the provisions of section 227 whereof, relating to service of notice, had not been complied with by the defendant. The Act of 1975 was not on the Statute Book when this dispute arose in the years 1973 and hence it fell to be resolved under the law then in force, namely, the Municipal Administration Ordinance X of 1960. Section 77 thereof prohibits the erection or re-erection of a building unless the site has been approved and the building plan has been sanctioned by the Municipal Committee and until then, forbids even the commencement of such a project. Applications for this purpose are provided for in its subsection (2) to be submitted to the Municipal Committee which are provided for in subsection (3) to be disposed of as early as possible. This subsection reads :- "(3) Ali building applications prescribed under this section shall be registered in the manner provided in the bye-laws, and shall be disposed of as early as possible, but not later than sixty days from the date of the registration of the application, and if no order is passed on an application within sixty days of its registration, it shall be deemed to have been sanctioned to the extent to which it does not contravene the provisions of the Building Bye-Laws, or of the Master Plan or Site Development Scheme, if any."
8. There are West Pakistan Municipal Committees (Issue of Notices) Bye-Laws, 1960, item 5 whereof provides the mode of service of special notice and not to speak of adherence to the mode of service provided therein, no notice at all has been proved in this case to have issued eve to the petitioner to convey the order dated 30-8-1973 about the rejection of his plan. A similar situation arose in P. Mahadeva lyer and others v. Municipal Council, Kumbakonam (1), wherein, under a similar provision made in section 180(5) of Madras District Municipalities Act, 1814, it was held as under :- "If within the period of six weeks the Municipal Council does not grant the licence, the applicant can proceed to construct, reconstruct or extend a wall or building, as the case may be, but such construction must be in accordance with the plan which accompanied his application."
' To the same effect are also the cases reported as 5 Calcutta Weekly Notes 42 and I L R 37 Ali.
220.
It is not the case of the defendant that the construction made on the site is not in accordance with the plan submitted by the petitioner. Even the notice (Exh. P 3) has neither been issued to the petitioner nor does it mention anything regarding his plan, muchless about the rejection there and does not even specify as to which particular house does it relate. What to speak of the communication of the refusal to sanction the plan of the petitioner, he has never been notified its rejection and much less has the defendant suggested any modification or alteration therein.
' A complete rejection of the plan submitted by the petitioner is not within the contemplation of law to disable the petitioner from at all building the house upon the land purchased by him. In Khushalda Moolchand v. Emperor (2), it was held :- "A Committee is not empowered to deprive owners of the legitimate use of their land or to refuse permission to build at all, but the law does confer upon the Committee a very wide power of regulation over buildings. The object of the power is to secure the safety and sanitation of building to be newly erected."
' Again, it has been held in 1970 D L C 512 that if rejection of plan is not communicated within sixty days thereof then no action adverse to the party could follow upon it.
9. In the above view of the law applicable to the case, the petitioner is clearly entitled to the relief claimed by him. Therefore, this civil revision is accepted and setting aside the decrees passed by the two Courts below, petitioner's suit is decreed as prayed. There, however, is no order as to, costs. {{FOOT NOTE}}
(1) AIR 1927 Mad. 241 (2) AIR 1918 Sind 531 {{FOOT NOTE}}