1. RAJA QURESHI, J.--- Impugned in this appeal is an order, dated 6-1-1998 passed on Civil Miscellaneous Application No,6189 of 1997 in Suit No,1173 of 1997 by a learned Single Judge of this Court. The operative part of the order is in the following terms:-- "In the circumstances, the plaintiff has made out a prima facie case to restrain the defendant No,1 from raising further construction on the subject property. However, looking to the interest of the third parties and for the reasons that the project has already been constructed by the defendant No,1 to the extent of basement plus lower ground plus ground plus three upper stores. I am inclined to allow the defendant No,1 to complete the construction up to the third floor at its own risk and strictly in accordance with the I (first) plan approved through letter, dated 3-5-1995 but subject to the condition that all the parties in whose favour interest of any nature is now or has already been created, shall be put on clear notice about the present proceedings further clarifying that the construction up to the third floor is raised by the defendant No,1 at its own risk and shall be liable to be pulled down in the event of the plaintiff succeeding eventually without the third parties or the defendant No,1 claiming any reimbursement or compensation. The defendant No, 2 is restrained from issuing any completion certificate or no objection certificate allowing occupation of the building and is further required to ensure compliance with the above and that the building constructed over the subject property is not occupied or used for any purpose whatsoever during pendency of the suit. With the above observations the application is disposed of. The costs shall abide the decree."
2. The appellants are owners of Plots Nos.13, 15, 16 and 18 duly amalgamated, which are situated in Delhi Cooperative Housing Society Limited. Such amalgamated plots have been singly numbered as Plot No:13 upon approval of amalgamation by the competent Authority. Total area of Plot No,13 is 6024 sq. yds. It seems that amalgamation of the aforementioned four plots was achieved by the appellant in due process of law duly permitted by the Government of Pakistan, Works Division.
3. Accordingly it further seems that amalgamation plans of the aforementioned four plots culminating into Plot No,13 were also approved by the competent Authority. Thereafter, the said amalgamated Plot No,13 was also converted into a commercial plot by the competent Authority.
4. Record further reveals that the plot of the appellant was declared commercial by the governing body of K.D.A. after requisite consultation with the relevant agencies. The appellant having paid sale consideration to the previous owners of the amalgamated plot also appear to have paid commercial charges, security fee, amalgamation fee and fee for obtaining No-Objection Certificate for sale and advertisement of the premises proposed to be constructed on the amalgamated commercial Plot No,13 admeasuring 6024 Sq. yards. Record further reveals that there are commercial buildings in the vicinity of the property of respondent No,1 such as Glamour-I, Firpo and Falcon, to which the respondent No,1 had not raised any objection for their conversion of residential plots to commercial or for that matter raising of commercial buildings on the said plots.
5. The appellants had submitted their plans for construction of shop on the plot of land which stood duly approved by the K.B.C.A. The appellants had earlier submitted their building plans which were duly approved and thereafter, revised plans were also approved vide letters 8-3-1997 and 20-10- 1997 respectively, by K.B.C.A. The appellant thereafter demolished the existing building and had established a booking office at the said plot in 1995, whereafter appellants started raising construction and the process of construction commenced in 1995. The appellant having commenced with the construction and having obtained no-objection certificate for advertisement and sale of shops and offices, also commenced with booking of the proposed construction being a question of common knowledge.
6. It was only on 22-9-1997 that the respondent No,1 had filed a Suit bearing 1173 of 1997 on the original side of this Court. The stand of the respondent was that she is owner of plot measuring 125 Sq. yards bearing Survey No,5/46-B Survey Sheet No,35-B/1, New Karachi Cooperative Housing Society, Karachi. She had filed a sub-lease issued in her favour on 20-12-1993. Further position taken by the respondent No,1 was that the appellant was raising illegal construction on the plot of land opposite to their house and sixteen feet wall has been raised just in front of her house. There seems to be exchange of notices between the appellant and respondent No,l. She had further claimed that amalgamation of plots was without notice to her as well as owners of adjoining properties.
7. Consequently, she challenged the conversion of the plot into commercial and canvassed that she was being deprived of the right of air, privacy and easements coupled with the problem of water, sewerage, gas and electricity in the event the construction on the appellants plot is permitted.
8. There further seems to be preliminary objection raised by the appellant after which site was inspected under the orders of the Court, and finally an order of restraint based on the aforementioned were sought against the appellant from raising further construction on the plot in question. She had stated that the project has already been constructed to the extent of basement plus lower ground plus ground and three upper storeys. It was in this background that the impugned order bad been passed.
9. 'The learned counsel for the appellant has contended that the respondent No,1 was guilty of laches as she had allowed the appellant to raise construction right from 1995. It was further contended that the conversion of the plot from residential to commercial is the absolute prerogative of the Authority concerned and the respondent No,1 has no authority to raise any objection. Coupled with this, the learned counsel has strenuously argued that the competent Authority had raised no objection to the construction. He has further contended that the respondent No,1 is living in a different society, whereas the plot of land in question is situated in Delhi Cooperative Housing Society, and there is at least 40 feet wide road between the two properties located in two different societies. Our attention has further been invited to an aspect that the entire Tariq Road has been declared and notified as commercial, and that the Karachi Water and Sewerage Board, Sui gas and Karachi Electric Supply have recorded their no objection for construction of commercial buildings on the said Tariq Road as well as the project of the appellant. The learned counsel has further contended that the sewerage lines, streets and roads of the Society in which the respondent No,1 has her property are in no manner affected by the property of the appellant which is situated in altogether a different Society. Mala fides are attributed by the appellant against the respondent No,1. No objection was taken by the respondent No,1 in respect of a number of other buildings which have been constructed around the property of the respondent No, 1 . In so far as compulsory spaces in respect of commercial properties is concerned on Tariq Road, the same was canvassed to have been waived by the respondents Nos.2 to 4 not only in respect of the property of the appellant but in respect of all the properties on Tariq Road, and consequently none of these properties have observed the compulsory space. It was contended that no prejudice whatsoever is being caused to the respondent No,1. The learned counsel has further stated that the regularization of the plan is not contrary to the provisions of Act XXIV and Ordinance of 1997. The Ordinance admittedly has come into operation much after the regularization of the plan and does not operate retrospectively. In so far as Act XXIV is concerned the same was argued as not to apply as the building of the appellant was being raised strictly in accordance with the approved plan. It has lastly been contended that the construction which is regularizable in law, the same is not consequently prohibited. The counsel for the appellant has raised his attack on the aforementioned impugned order to the extent that the learned Single Judge has observed that construction could only be carried out in accordance with the original plan, and not in accordance with the revised approved plans. Such observation was contended to be not warranted by circumstances, as the authorities had lawfully accorded waiver and approved the revised plan in October, 1997. His further contention is that merely having a prima facie case would not warrant the order of injunction that has been passed by the learned Single Judge as two other ingredients were absent in terms of irreparable loss and balance of convenience. Respondent No,1 was contended to have kept quiet for a period of two years, and in the event there was any violation, as now claimed by her then she ought to have raised the same in the first available opportunity.
10. Commercialization of plots in question is stated to have taken place in the years 1983 and 1985.
11. Reliance has been placed by the learned counsel for the appellant on 1995 SCMR 362 at page 377 para. 24 and para.28. Further reliance has been placed on 1989 MLD p.1966 and 1989 MLD 2987, PLD 1983 Kar. 11, PLD 1982 Kar. 425, PLD 1996 Sindh Statute p.200 and a Notification, dated 25-10-1997 promulgating an Ordinance whereby amendments have been inserted in section 19 of Sindh Building Control Ordinance by way of addition of a proviso.
12. On the other hand the learned counsel for the respondent No,1 has contended that a prima facie case had been made out which has resulted into the passage of impugned order. Learned counsel also pointed out deviation in the process of construction which according to the learned counsel are not compoundable. Learned counsel for respondent No,1 further contended that there are serious violations of Building Control Rules, Regulation and the law. He further contends that there has been violation of a nature which is non-compoundable and such violation are stated to be in non-compliance of the approved building plan. He has invited our attention to a technical expert report and has submitted that construction had to be raised by the appellant on the basis of the approved plan and further respondent No,2 is required to act in accordance with the Building Control Rules, Regulation and the Laws by virtue of being a Statutory Body. Prime duty of the respondent No,2 has been canvassed to be aimed at protecting the rights and interests of public and to avoid waiver of transgression or violations. The respondent No,2 has supported the impugned order. Suppression of factual aspects has also been attributed to the appellant. Lastly the respondent No,1 has stated that the construction raised by the appellant has operated to deprive the respondent No,1 of her easement right like air, privacy besides affecting the civic amenities. Amalgamation of the plot and its consequent commercialization has been attacked by the respondent No,1 to be illegal. In so far as delay that had been occasioned by the respondent No,1 for raising her grievance, if any, against the illegal construction. Such -delay -is contended by the learned counsel for the respondent No,1 as to not come in the way of her grievance in respect of the construction being raised. The learned counsel for the respondent No,1 has relied on the citation Abdul Razzak v. K.B.C.A. PLD 1994 SC pg.512, wherein their Lordships have been pleased to hold that framing a. housing scheme does not mean simplicitor levelling of the land and carving out plots, but also involves working out approximate requirement of amenities, water, electricity, gas, sewerage lines, streets, roads etc. Such violation in consequence thereof every person is likely to suffer. Reliance further has been placed by the respondent on the Architect reports as well as on 1989 CLC p.1936, 1989 CLC 2173, 1990 CLC p.83, 1990 CLC 448, 1990 CLC p.1842 and lastly on PLD 1994 SC 512.
13. The learned counsel Mr. Iqbal Memon representing the respondent No,2 has stated that the respondent No,2 has approved the plans and the Construction has been raised by the appellant within the framework of law. As such the position taken by the respondent No,2 is that the appellant could raise their construction to the extent of the approved plans by the respondent No,2.
14. The learned A.A.-G. has supported the appellant and has further submitted that in view of the violation, if any, which have been compounded the order impugned in this appeal cannot be sustained.
15. Having considered the submission made by the learned counsel and having examined the record, we are of the view that admittedly the construction by the appellant had commenced in May, 1995 as per the proposed plan. The respondent No,2 had approved the building plan for basement, plus lower ground, plus upper ground plus three floors on this commercial plot measuring 6024 sq. yds.
16. It further seems that the respondent No,1 had not raised any objection whatsoever for nearly about two years and allowed the building of the appellant to be constructed. No breach of her right of easement was expressed, nor objection to the amalgamation or commercialization of the plot was raised by the respondent till such time that the construction of the appellant has reached a level of basement, lower ground, upper ground plus three floors.
17. A peculiar feature which cannot be ignored is that Tariq Road is a commercial area and so many commercial high rise buildings are there in the same area and in the immediate neighborhood of the house of the respondent No,
1. The respondent No,1 cannot be allowed to hold grievance against the appellant, especially when in the same neighborhood several high rise buildings of nearly the same height have been constructed without any objection from the respondent No, 1 There is yet another aspect which cannot be ignored that respondent No,1 is living in a different Society, and the distance between her 125 sq. yards property and property of the appellant is 40 feet wide road. Having kept silent and allowing the appellant to continue with the construction till the entire structure of the building upto third floor had been completed the respondent No,1 had filed the suit. As such by keeping quiet without raising any objection, the respondent No,1 appeared to have represented her no objection to the construction of the appellant. Eyes cannot be closed to yet another feature that a number of other 5/6 storied buildings have been constructed on the main Tariq Road in the immediate neighborhood, but the respondent No,1 had not raised any objection to any one of them. All these commercial buildings abut on the main Tariq Road, but no objection had been raised by the respondent No,
1. Rejoinder-in-affidavit filed by the appellant reflects that K.B.C.A. has approved ground plus six floors building plan very recently on as many as three other plots being Plot No,39, Delhi Cooperative Housing Society, opposite to the appellant Building. Plot No,110, Block 3, Bihar Cooperative Society, Alamgir Road has been commercialized and site plans are available and have been filed by the appellant. Plot No,154-S, Block 2; P.E.C.H.S. in which permission has been granted for upto fourth floor.
18. It further seems that respondent No,1 had filed a High Court Appeal No,10 of 1998 challenging this very impugned order which was dismissed as withdrawn on 26-3-1998. Such action on part of the respondent No,1 could result into drawing an inference that the order operating against the appellant was required to be set aside. Orders of the Chief Minister Sindh, on the summary allowing relaxation of restriction and the General Body Resolution No,215 has also been filed by the appellant. At this stage reference could be made to Para. 43 of Multi Lines Associates v. Arrester Cowasjee 1995 SCMR p.362. In accordance with the law laid down by the Supreme Court of Pakistan that any order passed by the Chief Minister or by the Authority to whom such powers are delegated are deemed to be orders passed by the Government. For the purpose of ready reference Para.43 is reproduced herein under:-- "There is no cavil with the proposition that our Constitution contemplates parliamentary form of Government; in which executive head of the Government in the Province is the Chief Minister. In the Sindh Governments' Rules of Business, 1986, while describing the powers of the Chief Minister it is provided that any order passed by the Chief Minister or any authority to whom he has delegated such power shall be deemed to be the order passed by the Government. It is so stated in Rule 7, Part III of the Rules of Business mentioned above. Such order of the Chief Minister cannot be called in question on the ground that it is passed in deviation of Regulations because there is no such deviation. It is a separate and independent statutory power of the Chief Minister which is to be exercised by him within the frame-work of the Sindh Building Control Ordinance, 1979, if it is not inconsistent with other provisions of the Ordinance. Rules and regulations are subordinate and delegated legislation deriving authority and legal cover from the provisions of the Ordinance.
19. Regulation 16 of the Karachi Building and Town Planning Regulations relates to the powers of the concerned authority and prescribes procedure in case when building works are being carried out contrary to the provisions of the Regulations and in such case written notice is to be given to the person responsible for construction and if he fails to show sufficient cause to the satisfaction of the authority, then he can be required to demolish whole building or part thereof or bring construction in conformity with the Regulations or compound the offence and after realization of composition fee, construction can be allowed as permissible. Composition is allowed under section 19 of the Sindh Buildings Control Ordinance, 1969 and the procedure is prescribed in the Regulations as mentioned above."
20. So far as commercialization of the plot in question is concerned, suffice it to say that such commercialization is a process adopted between the lessee and the lessor in respect of an area being predominantly commercialized and therefore, the respondent specially living in a different society could not raise an objection of this nature.
21. Coming to the report of the Architect, the same was required to show whether construction by the appellant has been raised in accordance with the approved plan. In any case the Architect who was not required to give his opinion as to whether or not the construction was raised by the appellant was regularizable. However, we find that all violations alleged are regularizable and have been regularized. It was under these circumstances, that the K.B.C.A. has not raised any objection.
22. In so far permission to raise the fourth floor is concerned, we find that on 3-5-1995 plans were approved up to the third floor and after the entire structure had been constructed on 20-10-1997 fourth floor was allowed to be constructed but after payment of fee for the additional floor.
23. The fact that respondent No,1 has remained silent for a period of more than two years allowed third party interest to be created, and further allowed the structure to be completed, the grievance of the respondent was that the construction without approval was being raised and has been raised by the appellant is violate of the approved plans which is not so, as per the stand taken by Karachi Building Control Authority. We further find that in so far as ease monetary right of respondent No,1 are concerned, the same are not being affected as in this commercial city of Karachi with a 40 feet wide road between the plot of the respondent No,1 and the structure of the appellant, both located and situated in different societies, it would be hard to deprive the appellant of their property, in which third party interest have already been created, especially when the respondent has not been able to explain her silence for over a period of two years, and then subject the appellant to the litigation of an instant nature.
24. We further find that no-objection certificate of K.W.S.B., K.E.S.C., have been placed on record which indicates that civic amenities would not be affected. In so far as amalgamation is concerned we find that it is the Authority Commercializing a property, who could have raised such an objection.
25. The dictum laid down in the Multi Line case by the Supreme Court of Pakistan would be applicable in the present set of circumstances, and the order impugned in this appeal would operate to the serious prejudice of the appellant. We further find that the respondent has not taken a position whereby it could be said that the construction of the appellant has been designed in a manner that it would obstruct the light and air of the respondent No, 1 . A hire statement that light and air would be obstructed with no definite instance of obstruction having been pleaded, the Architect has also not, in any manner, supported the respondent that the construction of appellant would obstruct the light and air and other easement of the neighbors.
26. In view of the above facts, we are of the view that the very act of respondent No,1 of having waited to allow the appellant to raise construction, till such time that the construction reaches the stage of basement plus lower ground, plus upper ground, plus three floors when she elects to object to the construction being raised by the appellant.
27. In the above circumstances, respondent No,1 had no prima facie case, nor balance of convenience was in her favor. No irreparable loss was likely to be caused in case of refusal of injunction and the impugned order in the above stated terms was not justified. Learned counsel for K.B.C.A., and Additional Advocate-General have also supported the impugned order.
28. We, therefore, allow this appeal, and set aside the impugned order, dated 6-1-1998 with no order as to cost.