' KAMAL MANSUR ALAM, J.---By this the petitioners challenge the approval of plan by respondents Nos.3 and 4 for the reconstruction of petrol pump and allied structures on petitioner's plot No, 217, E.I Lines situated on Dr. Dawood Pota Road, Saddar, Karachi, measuring about 1597 sq. Yds. And seek to restrain respondent No,5 from undertaking construction in pursuance of the said plan.
' The aforesaid plot was initially leased out by the Military Estate Officer of Karachi Circle, the respondent No,4, to Mr. Dosa Bhoy Darabji Marker, Miss Manoo Darabji Marker and Mrs. Dinoo Manek Chenoy by lease deed dated 15-5-1961 for a term of 30 years and subsequently by lease dated 4- 124961 the original lessees leased out the plot to respondent No,5 also for a period of 30 years, for installation of petrol pump, service station etc. Under the latter lease the respondent No,5 paid to the respondent No,4 a sum of Rs,3,19,400 as charges for conversion of the plot from residential to commercial tenure and thereafter installed petrol pump and raised allied structures thereon in accordance with the then approved plan. Later, on 22-4-1979 the said original lessees sold their interest in the plot to the petitioners and consequently on expiry of 30 years term of the original lease dated 15-5-1961, the respondent No,4 renewed the lease for another period of 30 years in favour of the petitioner. As regards the other lease dated 4-12-1961 between the original lessees and the respondent No,5, the petitioners refused to renew the same and by notice dated 25-6-1989 called upon respondent No,5 to vacate the plot. This followed by a suit for declaration, specific performance and injunction filed by the respondent No,5 against the petitioners which is still pending. In the meanwhile respondent No,5 applied to respondent No,3 for the approval of plan for reconstruction of the petrol pump and allied structures on the plot, which was approved in October, 1992 and thereupon respondent No,5 undertook the reconstruction work which remains incomplete by reason of prolibitory order in this petition.
' We have heard Mr. Khalil-ur-Rehman, the learned counsel for the petitioners and Messrs Muhammad Ali Sayeed, Rao M. Shakir Naqshbandi, Farooq H. Naek and Umar Qureshi, the learned counsel appearing for the respondents.
' The learned counsel for the petitioners has urged two grounds in support of the petition. His first contention was that after the expiry of the 30 years subrelease granted by the original lessees to respondent No,5 on 4-12-1961 the status of the said respondent became that of tenant on sufferance under section 116 of the Transfer of Property Act, for, the petitioners who had stepped into the shoes of the original lessees had neither renewed the sub-lease nor had consented to the occupation of the plot by that respondent and therefore, by virtue of section 108(p) of the Transfer of Property Act, in the absence of any new agreement, it had no right to raise any fresh construction on the plot on the basis of the expired sub-lease.
' Disputing petitioners' claim the learned counsel for respondent No,5 submitted that in effect the sub-lease of the plot by the original lessees to the respondent No,5 was for 90 years and it was in consideration of this period that respondent No,5 paid the entire conversion charges of Rs, 3,19,400.
It was stated that the period of 30 years was mentioned in the sub-lease only because that was the term of the main lease between the President and the original lessees, but the sub-lease was renewable, at the option of the said respondent, for two further terms of 30 years each.
The above contentions of the learned counsel obviously call for determination of rights and obligations of private parties, namely, the petitioners and respondent No,5, under and arising out of the terms of the lease deed between them. Such controversies, we are afraid, cannot be gone into in a Constitution petition. These have to be determined on evidence in appropriate proceedings.
' Second submission made by the petitioners' counsel was that the respondents Nos.3 and 4 should have insisted on the submission of the reconstruction plan by the petitioners, as lessees of the plot, or their attorney and in any case before approving the reconstruction plan submitted by respondent No,5 it was incumbent upon respondents Nos.3 and 4 to have required the respondent No,5 to obtain petitioners' consent to the proposed reconstruction and in the absence of such consent should have refused to approve the plan. In support of his contention he referred to the specimen of the 'Application for approval of Plans' (Form No,1) printed at page 131 of the book containing Part I of Karachi Building and Town Planning Regulations. It will be useful to reproduce this Form here. FORM NO.1 NAME OF THE CONTROLLING AGENCY, KARACHI DATE OF DELIVERY APPLICATION FOR APPROVAL OF PLANS (See Section No,7)
' The Controller of Buildings
1. I/We hereby apply for permission to erect/re-erect/make additions to and/or alterations in a building on plot No..Karachi in accordance with the Building Plans submitted herewith for approval.
' Necessary particulars are given below and certified to be true:
1. Plot held from
2. Reference of title deed
3. Intended use of proposed building
4. Description of the proposed building works.
2. Mr. ------------- Licensed Architect/Engineer holding Licence No, ----category..Is hereby authorised by me/us to do all things required to be done under the Karachi Building and Town Planning Regulations, 1979 on my/our behalf.
3. I/We undertake that I/We shall be personally held responsible for any violation of the Karachi Building and Town Planning Regulations, 1979/conditions if any, accompanying the approval of the Plan/Plans.
' Karachi Sig. Owner/Attorney ' Dated: Address: .
' Particulars/Enclosures:
(1) Five copies of proposed plan (in case of plot held from any society please get the plans forwarded and stamped by the Society).
(2) Receipt of payment of security/fee.
(3) Copies of allotment order/transfer letter.
(4) Receipt of payment of last instalment.
(5) Copy of lease deed/sale-deed/Sanad, if any.
(6) Copy of site plan.
(7) P.T.O. And sub-division plan from Settlement Department, if any.
(8) Copy of power of attorney in case the owner is not submitting the plans himself.
(9) Acknowledgement of Possession Order.
(10) Certified copies of extract and sketches from KMC/CDC in duplicate, in case of city's plots.
(11) Copy of previous approved plan, if any, with No, and date."
' He contended that the above application form provided for signature by the "Owner/Attorney" only and that in case the application was signed by an attorney it further provided for submission of copy of power-of-attorney alongwith the application. This, he stated signified that under the rules no person other than the owner of the plot or his attorney could apply for approval of construction plan and, therefore, in the present case, the application submitted by the respondent No,5, who was neither the owner of the plot nor their attorney, could not have been entertained or approved by respondents Nos.3 and 4.
' In reply it was argued by the learned counsel appearing for the respondents that the land in question being situated within the Cantonment area, construction thereon and all related matters including application for approval of requisite construction plan, were to be regulated by the Cantonments Act, 1924, to the exclusion of any Provincial enactment or regulations. This contention finds support from the judgment of a learned Division Bench of this Court in the case of M/s. Zeshan Builders v. Karachi Building Control Authority and 4 others reported in 1992 M LD 2259. The relevant portion of the judgment reads as:--- "The subject 'Local Self-Government in Cantonment area' having been enumerated in the Federal Legislative List. Clause (a) of Article 142 of the Constitution is attracted and no law enacted or promulgated by the Provincial Legislative Authority can prevail upon the Cantonments Act, 1924.
' There is, therefore, no escape from the conclusion that building control within the limits of respondent No,2 is to be regulated under the Cantonments Act, 1924, and the Provincial laws on the subject will not be applicable to the buildings erected or intended to be constructed on a plot situated within the territorial limits of the said respondent. It is not necessary that any provisions of the Sindh Building Control Ordinance, 1979 should be declared as repugnant in terms of Article 143 of the Constitution and as observed above it shall suffice to say that provisions of the Ordinance cannot be enforced within the limits of respondent No .2 " .
The position that emerges from the above judgment is that the Karachi Building and Town Plaining Regulations, relied upon by petitioners' counsel, being provincial regulations framed by Government of Sindh would not apply to the plot in question which is admittedly situated in cantonment area. But even otherwise we do not find it possible to accept the argument that merely because the specimen of the application form makes provision for signature of the "Owner/Attorney", only the owner of the plot or his attorney would be entitled to apply for approval of construction plan or that owner's consent to the proposed construction was necessary. Had such been the intention this would have undoubtedly been specifically provided in the regulations.
In fact it would appear from paras. 8,10 and 11 of Part I of the Regulations that, every person who intends to carry out building work or erect or re-erect a building may apply for approval of plan and all that he has to do is to produce documents of title showing his right to carry out the work.
' In the present case the admitted facts are that the respondent No,5 was granted sub-lease of the said plot by the original lessees (predecessors-in-title of the petitioner) for a period of 30 years expressly for installation of petrol pump and allied constructions, the sub-lease was renewable for two further terms of 30 years each, under the sub-lease respondent No,5 paid to respondent No,4 conversion charges of Rs,3,19,400 and then applied to the respondent No,3/4 for approval of the first plan for installation of petrol pump and allied structures, this plan was approved by respondents 3/4 on the basis of the said sub-lease without either referring to the original lessees or obtaining their consent, the original lessees never objected to the approval of the first plan by respondent without their consent and/or to the constructions raised by respondent 5 in pursuance of that plan and that ownership of the said constructions now sought to be demolished and replaced by another vested exclusively in respondent No,5. In view of the above position coupled with the fact that respondent No,5 continues to occupy the plot in pursuance of the said sub-lease, no fault can be found in respondents No,3/4 action on the sub-lease, on which they had acted earlier, and approving the plan for reconstruction submitted by respondent No,5, for surely they were not competent to have gone into the controversial issue pertaining to the consequences of the expiry of the first form of the sublease.
Needless to mention that the petitioner's counsel was unable to point out any provision of the Cantonments Act or rules made thereunder prohibiting approval of construction plan without the consent of the owner of the plot.
' For the above reasons we find no force in this petition which is accordingly dismissed but with no order as to costs.