1. ' By this order, I intend to dispose of the application (C.M.A. No,958 of 1995) moved by the plaintiff under Order XXXIX Rules 1 and 2, C.P.C., supported by his own affidavit, whereby prayer has been made for an order restraining the defendants, their employees, agents, functionaries or any other person(s) acting on, their behalf or through them from interfering, damaging, demolishing or causing loss to the existing structure of the 5th Floor of the Building (namely Khayam Chamber 190/A-1, Block-2, PECHS, Society, Karachi), in any manner till the disposal of the suit.
2. ' The facts relevant for the disposal of ' the application are that the plaintiff claimed ownership of the building Khayyam Chambers of the plot referred to above, purchased in the year 1991. At the time of purchase, the building was under construction, complete up to fourth floor and fifth was incomplete. The plaintiff was assured by the previous owner that they had completed all of the formalities for the completion of the building and they handed over the construction plan and the application for approval, dated 15-8-1991, moved with the defendants. It was his case that the approval was not communicated to them and in terms of para.l3(3) of the Building Regulation, he completed 5th floor. On 15-2-1995 a notice was received by him to appear before Sub-Divisional Magistrate, Ferozeabad, Karachi. He appeared and participated in the proceedings, which, according to the plaintiff, was nothing but harassment and no order has been passed on the application for approval of the plan submitted by him and the prosecution of the plaintiff before the S.D.M. Was an attempt to coercively extort money from the plaintiff, which are obvious wrongs/torts committed against him. The prayers in the suit are as follows:-- "(a) Declaring that the failure of the defendants in complying with the mandatory provisions of Regulation 13 of Karachi Building and Town Planning Regulations (per description in Memo. Of plaint), causing issuance of Notice through S.D.M. Ferozabad, Karachi-East, and attempts to coercively extort money from the plaintiff constitute wrong/torts and the plaintiff is entitled to recover damages for such wrong;
(b) Declaring that the plan of construction of the 5th floor (Annexure-B to the plaint) of Khayyam Chambers, 190/A-1, Block-2, PECHS Karachi, stands approved under said Regulations and the defendants cannot question the validity of such implied approval;
(c) Restraining the defendants, their agents, functionaries, employees, attorneys or any other person(s) acting on their behalf or through Them from interfering, damaging/demolishing or causing loss to the existing floor/structure of said building, in any manner, without due process of law;
(d) Directing the defendants to pay Rs .1,00,00 ,000 damages to the plaintiff for subjecting the plaintiff to wrongs/torts, inter alia, negligence malicious prosecution, extortion, harassment/mental torture:"
3. ' The defendants KBCA/KMC have :fled the written statement. They have denied he averments made in the plaint. Their pleas were that the building plan of the suit property, for ground floor only as residential limit, was approved on 9-2-1960 by the K.D.A. The structures comprising of ground.
4. Plus 4 upper floors are existing since 1988, without approval of the competent Authority, which are unauthorized and illegal, as objections on the revised building plan, submitted by Mr. Sher Ali through his Lic: Architect Mr. Jaffar Ali Ismail Associates were not complied with and a result said revised plans were not approved and the objections were duly sent to Mr. Sher Ali on 10-8-1998 and 15-8-1998. The completion )Ian of the suit property for ground plus 4 supper floors was also not approved. The entire construction is unauthorized. It was also pleaded that para.13(3) of the Building Regulations is not applicable to the case as the objections, on the revised building plan, submitted by the owner, were already communicated to him within the specified period and thereafter, no plan was submitted by the plaintiff as yet. They have admitted the prosecution of the plaintiffs, under the provisions of Sindh Building Control ordinance, 1979-82.
5. ' The counter-affidavit of Sultan M. Zuberi, Deputy Controller of Building has been filed against the application filed by the plaintiff/under Order 39, Rules 1 and 2, C.P.C., as stated above, wherein the facts stated in the plaint have been peiterated.
6. ' It was also' pleaded that after show-use notice issued to the plaintiff for moval of unauthorised construction, action as taken against the unauthorised instruction on 23-1-1995 and further molition was suspended on undertaking submitting by the plaintiff that they will remove the unauthorised construction. Meanwhile, the plaintiffs malafidely filed the present suit against the KBCA and by misrepresentation obtained an ad interim injunction on 29-9-1995. It was further stated that plaintiff availed the illegal advantage of the ad interim injunction order and raised unauthorized construction up to 7th floor. On 31-8-1995, the same was removed. The remaining construction of sixth floor could not be demolished as the same was locked by the plaintiff. It was their plea that the plaintiff has not come with clean hands and no prima facie case nor balance of convenience lies in their favour and they will not suffer any irreparable loss, if the application is dismissed. No rejoinder was filed by the plaintiff to the facts.
7. ' The learned counsel for the plaintiff, Ghulam Ghous, has contended that the plan for approval was submitted by the plaintiff. Approval or otherwise was not communicated by the defendants within the period specified, as such the construction was deemed to be approved in terms of para.13(3) of the Regulation. Para.13(3) of the Building Regulations referred by the plaintiff's counsel reads as follows:--- "13(3) If no order is passed on an application within sixty days of its receipt, it shall be deemed to have been sanctioned to the extent to which it does not contravene of the provisions of these regulations, or the Master Plan or Site Development Scheme, if any, and after giving due notice on prescribed Form to the concerned Authority may proceed to carry out the said building works at any time within one year from the date of delivery of such notice."
8. ' He further contended that the defendants are unnecessary harassing the plaintiff, who has raised the construction is accordance with the regulation. He further contended that the plaintiff have good case for injunction and the balance of convenience lies in their favour in case the injunction is not granted the will suffer irreparable loss.
9. ' The counsel for the defendant Mr. Mirza Sarfraz Khan 'maintained that the approval for the ground floor in respect of the plot was obtained in the year 1960 for residential purpose. The plan was submitted after the construction of the project in the year 1988 and the objections to the plan were communicated to the previous owner. The objections were not complied with. On the contrary, the present plaintiff further raised construction up to the 7th floor. The action was taken for the removal of the 7th floor and the remaining construction could not be removed due to lock-out by the plaintiff. It has also been pointed out by the learned counsel that the plaintiffs, under the cover of status quo issued by this Court, raised the illegal construction.
10. ' The ground canvassed before me on behalf of the plaintiff's counsel for grant of injunction was that the plan for approval for the construction of the building was submitted by the plaintiff and in absence of communication of the approval or otherwise within sixty days, the plaintiff would be entitled to raise construction provided (i) it does not contravene the provisions of these regulations or Master Plan or Site Development Scheme (ii) after due notice on prescribed form to the concerned Authority, then the party can carry out construction of the building work within one year from the date of delivery of such notice, and the plan so submitted shall be deemed to have been sanctioned. .
11. ' The perusal of para.13(3) reproduced above would show that if an application has been submitted and approval is not communicated within 60 days, the same shall be deemed to have been sanctioned subject to conditions referred above.
12. In the present case, it is not the case of the plaintiff that the plan submitted by them was in accordance with the regulations or the Master Plan for the said area and notice has been served by them for the construction. For the contrary, the case of the defendant was that the previous owner, after completing the construction up to fourth floor and partly construction of fifth floor, submitted the plan in the year 1988 and objections to such plan were communicated to them.
13. Thereafter, the objections were not complied with. It has also been canvassed before me that under the garb of the status quo order granted by this Court the plaintiff has raised further illegal construction. The fact asserted in the counter-affidavit has not been rebutted by the plaintiffs in the shape of rejoinder affidavit.
14. ' The plaintiffs' case, as set out in the plaint, is purely based on para.13(3) of the Building Regulations but I doubt that the conditions required in para.13(3) were fulfilled by the plaintiff, as such the plaintiff cannot take refuge of the aforesaid provisions.
15. ' In view of the above discussion, the plaintiff has failed to make out a prima facie case for grant of injunction against the .Defendant, a statutory body who cannot be restrained from discharging its statutory duties. Consequently, the application has no merits and the same is dismissed with costs.
16. The status quo earlier granted is hereby vacated. The defendants are allowed to take action in respect of the illegal construction in accordance with law.