' The plaintiff has filed this suit for declaration, and permanent injunction and damages with regard to the construction of a commercial building on Plot No,B-C-13, Block-9, K.D.A. Scheme-5, Clifton, Karachi. The plaintiff seeks interim injunction restraining the defendants, their agents, etc. From taking any coercive prejudicial action against him in respect of the construction being carried out on the property in suit in accordance with the duly sanctioned building plan and from demolishing or withholding the sanction in respect of construction being carried out on the property in suit.
2. Plaintiff is the owner of the plot in suit. Defendant No,1 is an authority exercising municipal functions in the Clifton area under the Cantonment Act, 1924 whereas defendant No,2 is the Principal Officer of the Clifton Cantonment Board. Through the application dated 25-10-1994 the plaintiff submitted a building plan for approval for air raid shelter, ground, loft and six upper floors, which was delayed by the defendant whereupon he, by his letter dated 15-10-1995 and on instructions of defendant No,2, requested for approval of the building plan up to the level of third floor. It is averred that defendant No,1 refused to sanction the plan up to six floors on the assertion that there was ban imposed by the Govt. Of Sindh on high-rise buildings in Karachi. At the instance of the defendants the plaintiff credited a sum of Rs,28,922 by way of building plan fee and revised building plan fee on 1-11-1995. The building plan was approved vide letter dated 8-11-1995 for basement, ground floor, mezzanine and three upper floors which the plaintiff commenced construction in April, 1996. Defendant No,2 issued a notice dated 14-12-1996 under section 185 of the Cantonment Act, 1924 (hereinafter referred to as the Act) alleging certain deviations from the approved plan. This notice, according to the plaintiff, was issued mala fide and in an arbitrary manner with a view to harass him to accede to illegal demands. Said notice was followed by another notice dated 19-1-1997 calling upon the plaintiff to demolish and remove the unauthorised construction within 15 days from the date of notice failing which action under the provisions of the Act will be taken against him. However, no action was taken by the defendants against the plaintiff's construction which, according to the plaintiff, was found to be in accordance with the approved building plan but with minor deviations and also because the construction of full mezzanine floor was allowed by the defendants in the Clifton area. Under the circumstances, the plaintiff submitted a revised plan for regularization of construction up to three floors on 9-4-1997 to which no objection was raised and the plan, therefore, stood impliedly regularized. Later the plaintiff vide letter dated 4-8-1997 requested the defendants for permission to construct three additional floors as per original plan, as in the immediate vicinity of the property in suit a number of commercial buildings about six or more floors were constructed or were under construction. It is the case of the plaintiff that the defendants accepted the said application and asked him to deposit additional fee in respect of the said plan for additional floors. Accordingly the plaintiff deposited an amount of Rs,1,56,066 on 12-9-1997 and complied with all the requisite formalities. By letter dated 18-11-1997 the defendant No,2 informed the plaintiff that the building plan had been considered by the Building Committee of the Board on 6-11-1997 and the same was recommended for consideration of the Board subject to verification of structural drawings/stability from the Structural Engineer. He was asked to submit certain documents for consideration of the Board, which were duly submitted through his letter dated 20-11-1997. As despite recommendation of the Building Committee the defendants failed to communicate the approval despite a lapse of three month time, it is asserted by the plaintiff that by virtue of subsection (6) of section 181 of the Act the revised plan submitted by him on 4-8-1997 stood approved and sanctioned unconditionally. The plaintiff vide letter dated 22-12-1997 brought to the notice of the defendant that his plan stood sanctioned unconditionally yet he was submitting this call attention notice for sanction of his building plan within 15 days of the date of communication. Again by his letter dated 8-1-1998 the plaintiff invited attention of defendant No,2 and requested him to dispose of his application within 15 days of the receipt of notice and that owing to the negligence and omission on the part of the Board beyond the statutory period the revised plan stood sanctioned unconditionally. He further notified the said defendant that he had already paid the scrutiny fee and dues to the board in respect of the revised plan amounting to Rs,1,56,066 but without any response to his letter. In the said letter he also informed the defendant that he was commencing the building operation with immediate effect according to the building plan submitted by him as construction had already been delayed for long time.
3. It is the grievance of the plaintiff that all of a sudden and without any notice on or about '16-1- 1998 employees of the defendant No,1 illegally trespassed on the suit property and carried out demolition work on the construction being carried out causing damage to it. The plaintiff has impugned this action on the part of the defendants as arbitrary exercise of discretion and power not warranted by law. In the suit the plaintiff has sought declaration that action of the defendant in demolishing the construction being carried out is unlawful without jurisdiction and violative of section 181 of the Act as well as in derogation of the Constitutional rights of the plaintiff and the principle of natural justice. He has solicited permanent injunction restraining the defendants, their agents etc. From interfering in any manner with the ongoing construction in accordance with the duly sanctioned plan and from demolishing it and withholding the sanction in respect of the ongoing construction. In addition the plaintiff claims damages in the sum of Rs,50 million for illegal action of demolition and on account of negligence, omission and illegal interference in the lawful construction being carried out by him.
4. Along with the plaint Civil Miscellaneous Application 609 of 1989 was moved under the provisions of Order XXXIX, rules 1 and 2, C.P.C. Seeking ad interim order of injunction, which was allowed on 2- 2-1998 by a learned Ridge of this Court while directing notice to defendants.
5. Pursuant to the notice of injunction application the defendants filed a counter affidavit of Naeem Chaudhry, Cantonment Executive Officer, denying various assertions of the plaintiff. It is denied that the defendants neglected in passing order on the application of the plaintiff for approval of the revised building plan in respect of three additional floors. It is urged that defendants had approved building plan up to three floors and there was no objection to it but any construction beyond three floors without approved plan being illegal and unauthorised could not be allowed. According to the defendants, while the plaintiff submitted the revised plan for sanction of additional floors on 9-4- 1997 he started unauthorised construction beyond three floors in December, 1997 for which notices dated 14-12-1996 and 19-1-1997 were served upon him. Refuting various averments of the plaintiff the defendants urged that the plaintiffs have suppressed the notice dated 14-1-1998 mala fide to make out a false case and continued with his illegal and unauthorised construction under the shelter of the Court order. The action taken by the defendants was in accordance with section 185 of the Act after complying with the procedure laid down in sections 241 to 249 of the Act. The position taken by the defendants is that the plaintiffs after receipt of letter dated 18-11-1997 should have awaited for approval of the Board for construction of three additional floors and confined himself to the construction up to three floors but he started construction beyond three floors without approval of the plan by the competent Authority. A copy of the letter dated 14-1-1998 has been filed along with the counter affidavit requiring the plaintiff to stop unauthorised construction work immediately or the same will be demolished and removed at his cost and risk. This letter refers to plaintiff's letter dated 8-1-1998 and defendants' earlier letter dated 18-11-1997.
6. In the affidavit-in-rejoinder the plaintiff controverted the pleas taken in the counter affidavit and denied receipt of notice dated 14-1-1998, which was described as afterthought, concocted one and fabricated for the purpose of this suit.
7. At the hearing, approval of the building plan for construction up to third floor was neither disputed nor denied. Notices dated 14-2-1996 and 19-1-1997 issued in terms of sections 185 and 256 of the Act are also beyond the pale of any controversy. It appears that actually no written reply was submitted by the plaintiff to these two notices but Mr.Abid Zuberi submitted that an oral explanation was offered to the defendants and by letter dated 9-4-1997 revised plan was submitted for approval of three additional floors with a provision of pent house at the top. In connection with this building plan the plaintiff deposited a sum of Rs,1,56,066 on account of mutation fee, building plan fee, sewerage connection security deposit and withholding tax in the office of defendants on 12-9-1997. It was for the first time that defendant No,2 addressed a letter dated 18-11-1997 to the plaintiff intimating him that the building plan had been considered by the Building Committee of the Board on November 6, 1997 and the same was recommended for consideration of the Board subject to verification of structural drawings stability from the Structural Engineer. By this letter the plaintiff was required to submit list of structural drawings, soil test report and certificate of structural stability of building, which were duly furnished in the office of the defendants on 21-11-1997.
8. In the wake of the aforesaid facts, circumstances and background, the plaintiff heavily relied upon subsection (6) of section 181 of the Act, which reads as under;-- "(6). Where the Board neglects or omits, for one month after the receipt of a valid notice, to make and to deliver to the person who had given the notice any order of any nature specified in this section, and such person thereafter by a written communication sent by registered post to the Board calls the attention of the Board to the neglect or omission, then, if such neglect or omission continues for a further period of fifteen days from the date of such communication the Board shall be deemed to have given sanction to the erection or re-erection, as the case may be, unconditionally: ' Provided that, in any case to which the provisions of subsection (3) apply, the period of one month herein specified shall be reckoned from the date on which the Board has received the report referred to in that subsection."
9. With reference to fifteen days clause from the date of communication as aforesaid the plaintiff has relied upon his letter dated 22-12-1997 sent. By registered post A.D. Calling upon the defendant Board to sanction his building plan within fifteen days and to treat this letter as communication in terms of the above mentioned provisions of law providing for sanction of building plan unconditionally.
10. It appears that the object of section 181(6) of the Cantonment Act of 1924 is to avoid occurrence of undue hardship to a person intending to raise construction and to ensure that an unscrupulous employee of the Cantonment Board is not enabled to deny sanction of the building plan. Letter of law, in such event, has to be taken to its logical conclusion with the result that in the absence of any order refusing sanction within the statutory period, the application is to be deemed to have been granted. Such is to be followed by another step which is service of call notice inviting attention of the Board to the omission committed by it. The result thereafter, is self-executory and 15 days from the date of service of call notice, sanction of the proposed plan is implied. Such position, apart from cases decided under the Regulations framed by the Karachi Building Control Authority, finds support from judgments in Municipal Committee Hoshiarpur v. Darshan Lal (AIR 1946 Lahore 413), Ram Narain and others v. Cantonment Board Delhi and others (AIR 1973 Delhi 84).
11. In the latter case, which pertains to interpretation of section 181(6) of the Cantonment Act, the following conclusion was reached: "The legislature in subsection (6) of section 181 has designedly used the words 'deemed to have given sanction' if the neglect or omission continues for a further period of 15 days from the date on which the attention of the Board is invited in writing to the neglect/omission committed by the Board for not making an order within one month of the receipt of notice from a party intimating his intention to erect or re-erect a building. Since the words used in subsection (6) of section 181 are deemed to have given sanction there is no option but to carry the deeming provision of the law to its logical conclusion and hold that in the absence of any orders passed by the Board rejecting the application within the statutory period, the sanction stood granted by operation of law as is implicit in the language of subsection (6) of section 181. This view finds support from the cases already noted above."
12. In the above quoted judgment the assertion made on behalf of the Cantonment Board about loss of notice in the office of former was also repelled with the observation that a party cannot be penalized for negligence on the part of statutory authority. In view of the legal position as above, the building plan for erection or re-erection submitted by a party has to be treated to have been approved in the event of omission on the part of Cantonrhent Board to refuse sanction thereof.
Applying such principle to the present case, the plan submitted by the plaintiff having been sanctioned as above, the threatened action of demolition requires to be checked. However, the Court cannot remain oblivious of the present situation and the problems faced by civic agencies in maintaining clean and hygienic environments. The sanction of building plan claimed, on account of omission or inaction on the part of the Cantonment Board under section 181(6) of the Cantonment Act, 1924 has to be judged with circumspection and care. For instance building plan submitted by a party may be found totally contrary to the general town planning of the area. A party could then manipulate inaction on the part of Cantonment Board and assert sanction of the plan by virtue of the deeming clause contained in the above referred provision. Some checks are, therefore, required to be read while giving effect to letter of the law contained in section 181(6) of the Cantonment Act. The question as to whether benefit of section 181(6) of the Cantonment Act can be claimed by a particular builder will have to be decided on the basis of circumstances and merits pertaining to the particular matter. What I wish to emphasise is that the sanction of plan in terms of section 181(6) of the Cantonment Act is not unqualified or absolute but can be checked on the touchstone of Master Plan of the area and the Environmental Control C Regulations etc. If any.
Indeed such factors can finally be agitated after evidence is adduced by the parties and it is shown that the plan does not suffer from an inherent defect or manifest shortcoming, as above. In the circumstances, an interim order in terms of mandatory injunction requiring the defendants to allow construction of three additional storeys cannot be granted.
13. Another aspect peculiar to the present case is that the plan for construction of additional storeys does not amount to 'erection' or 're-erection' of building. One possible interpretation of section 181(6) of the Cantonment Act, 1924 that the sanction stipulated thereunder applies to erection of building on an open plot and to a plan for demolition of the existing structure and re- erection of building in its place. The additional construction is not specifically mentioned in section 181(6) of the Cantonment Act. However, I am inclined to leave such question for consideration and adjudication at the final stage.
14. Another reason for refusing grant of mandatory injunction in the above stated terms is that such order would amount to grant of final relief in the proceedings without trial of the suit which as observed hereinabove requires evidence.
15. However, as regards prohibitory order sought against demolition of the present structure, such appears to be justified for plan to raise structure up to three floors already stands sanctioned.
Requirement of a just and equitable order, in the circumstances, is that the defendants be restrained from taking any coercive action of demolishing the present structure and interfering with completion of building up to three floors. However, in regard to the upper three floors the plaintiff cannot be allowed to continue any construction activity thereon. Let both the parties, therefore, maintain status quo with regard to the upper three floors during pendency of the case.
' Civil Miscellaneous Application is accordingly allowed in aforesaid terms.