1. These are two applications for disposal namely; C.M.As. Nos.5884 of 1995 under Order XXXIX, Rules 1 and 2 read with sections 94 and 151, C.P.C. For Temporary Injunction filed by the plaintiffs and C.M.A.
2. No,5977 of 1997 under Order VII, Rule 11, C.P.C. For rejection of plaint filed by the defendants Nos. 3 to
5. As both applications involve common facts and grounds, I propose to deal with them simultaneously. The brief facts giving rise to these two applications are as follows: Dr. Zaheer Ansari and seven other plaintiffs are residents and/or owners of houses situated in Al- Hilal Cooperative Housing Society "the Society". According to the allegations made in the plaint Khawaja Abdul Rauf, the Secretary of the Society, defendant No,4 and the Society (defendant No,5) in collusion with the officers of Karachi Development Authority (KDA) prepared a revised Lay Out Plan of the Society to make personal financial gain by converting the land reserved for parks/amenity plots into residential plots and in pursuant thereto by letter dated 9-7-1993, the Society submitted a plan to KDA asking its permission to revise the Society's Lay Out Plan by shifting the Society's Office and the KESC substation to another site i,e, in the 100 feet wide strip of open land reserved for Water Conduit and allot the said area to its members in 'R' Category. On 5-1-1994, the Society submitted a request to the Chief Minister, Government of Sindh to direct KDA to approve the Revised Lay Out Plan of the Society on which the Chief Minister on 104-1994 endorsed the note: "Please proceed and set it done". Thereafter, the Minister for Housing and Town Planning forwarded the letter to KDA on 18-6-1994 with the noting "Please comply with the order of the Hon'ble C.M.
3. Within three days". KDA by letter dated 23-8-1994 informed the Society that the competent authority had approved the Revised Lay Out Plan of residential Plot Nos. R-1 to R.29 and accordingly the Society started allotting these plots at Rs,6.40 per square yard. On coming to know about the alleged illegal conversion and sale of plots, the plaintiffs on 8-7-1995 sent a legal notice to the Society but without any 'success. Consequently, the plaintiffs filed this suit for declaration, inter alia, that the act of KDA and the Society in converting the amenity plots reserved for water pipe line into residential plots is illegal, void, mala fide, ultra vires, without lawful authority and contrary to the provisions of KDA Order and for Mandatory Injunction directing KDA defendant No,1 to cancel all the ownership documents in respect of newly created plots and defendants Nos.6(a) to 6(cc) to vacate and hand over peaceful possession of the plots to the Society and restrain them from raising any construction or making any change in the above-referred plots. The plaintiffs also filed an application for Temporary Injunction to restrain defendants Nos.6(a) to 6(cc), their agents, servants, nominees and/or anybody claiming on behalf of the said defendants from raising any construction on the plots of land bearing Nos.R-1 to R-29, situated in the Society. From the documents filed by the parties it transpires that on or about 25-11-1972 KDA prepared a Revised Lay Out Plan of Scheme No,7, Blocks IV and V, Stadium Road, Karachi, which included the land allotted to the Society. The Revised Lay Out Plan including the area of the Society was approved on 31-7-1982 which showed a KESC Sub-station and Society's Office adjacent to a park and Plot No,D-1 allegedly belonging to plaintiff No-5. On the direction of the Chief Minister and the Minister for Housing and Town Planning the aforesaid Lay Out Plan was further revised on 23.8-1994 whereby KESC Sub-station was shifted and two residential Plots No,R-11 and R-12 were carved out thereon. The office of the Society was also shifted and its area was converted into residential plots bearing Nos.R-I to R-10. It further appears that regarding the use of 100 feet wide strip of land reserved for water pipeline, Karachi, Water and Sewerage Board (KWSB) wrote a letter dated 24-10- 1993 to the Society that it should avoid the reserved portion of 60 feet wide Dumlottee Conduit while demarcating the plots so that 30 feet wide portion is reserved on either side from the Centre of the Conduit. Thereafter, by letter dated 23-7-1994 KWSB communicated its no objection to the use of 100 feet wide strip of land for water pipeline provided the Society left 60 feet reserved portion for Dumlottee Conduit as stated' in their previous letter of 24-10-1993. Consequently, the Society carved out plots of 120 Square Yards each in the 100 feet wide strip earlier reserved and used for the main water pipeline as shown in the Lay Out Plan of Scheme No,7 which included the area allocated to the Society. In supports his application for rejection of the plaint, Mr.Amir Hani Muslim, learned counsel for defendants Nos.3 to 5 submitted as follows:
(i) It is a dispute between the members of the society and the plaintiffs and the society in respect of plots and land allotted by the society to defendants No,6(a) to 6(cc) and is covered under section 54 and therefore, barred under section 70-A of the Cooperative Societies Act. (1996 MLD 593 and PLD 1995 Karachi 399).
(ii) No suit can be filed against the society without giving 60 days' notice to the Registrar, Cooperative Society under section 70 of Cooperative Societies Act.
(iii) That the suit is barred under sections 42 and 56(k) of Specific Relief Act. (1995 MLD 399 and AIR 1941 Nagpur 364).
(iv) The society has allotted unutilized land to its members which cannot be challenged.
(v) As the plaintiffs have not shown any legal character or right in property, the suit is not maintainable under section 42 of the Specific Relief Act.
4. (vi)' Article 52-A of KDA Order No,5 of 1957 was not attracted because the 1982 Plan had been revised and word 'unused' is not, mentioned in the said Article. Mr. Muhammad Ali Jan, learned counsel for defendants 6(a) to 6(cc) while supporting the arguments of Mr. Hani added that defendants Nos,6(a) to 6(cc) are bona fide purchasers for consideration without notice, had committed no fault and were protected under section 41 of the Transfer of Property Act, 1882 and by the doctrine of Indoor Management (PLD 1969 Karachi 474).
5. He further argued that KWSB was the appropriate authority to determine the appropriate area required for the water conduit. Mr. Aamer Raza Naqvi, Advocate for K.D.A. Submitted that Article 52-A of K.D.A. Order was not applicable and instead Articles 38 and 40 were applicable to the present case. Further, the Society had obtained permission for conversion under Article 40(3) and Article 40(4) of K.D.A. Order, 1957, and therefore, it could not be challenged. He further submitted that Article 44 of K.D.A. Order, 1957 prescribed the Guidelines for framing of Schemes and as there had not been any violation of the said Article, the permission for creation of plots by KDA could not be challenged. Mr. Kawaja Shamsul Islam, learned Advocate for the plaintiffs in reply submitted that the suit was not barred under sections 54, 70 and.70-A of the Cooperative. Societies Act as the Civil Court has ultimate jurisdiction to declare the mala fide acts of KDA as illegal and in violation of law and relied upon PLD 1985 SC 698, PLD 1965 SC 671, 1974 SCMR 356 and 1997 CLC 962. He further submitted that the approval by K.D.A. Was in breach of K.D.A. Order 5 of 1957 and against the principles laid down by the Honourable Supreme Court on Good Governance as enunciated in PLD 1995 SC 530 and PLD 1991 SC 14. With reference to his application under Order XXXIX, Rules 1 and 2, C.P.C. He submitted that Karachi. Building and Town Planning Regulations, 1979, had not been followed for changing the use of land, and therefore, the conversion was contrary to law and would cause irreparable harm to the residents and the balance of convenience was in favour of the plaintiffs. He also submitted that a public functionary i,e, K.D.A. In discharging its functions must safeguard the rights of the citizens and relied upon 1990 CLC 83 and 1990 CLC 448 in this respect. He added that all the ingredients for grant of Temporary Injunction were present and accordingly the same should he granted. Mr. Farrukh Zia Shaikh, learned counsel for defendants Nos.6-A to J, submitted that injunction is a discretionary remedy and the plaintiffs were: not entitled to the same as a matter of right. They had failed to make out a prima facie case, balance of convenience and irreparable loss and as such were not entitled to temporary injunction. He added that the doctrine of Caveat Emptor is not considered good law any more in respect of immovable property which had been superseded by Consumer Protection Act, 1987. All counsel for the defendants vehemently opposed the grant of temporary injunction emphasizing that the three ingredients for grant of interim relief were totally lacking in the present case. Mr. Naimur Rehman, Amicus Curiae, submitted that if a change in a Master Plan was to be made it was necessary for KDA to issue a public notice, as required under the provisions of K.D.A. Order, 1957 and Karachi Building and Town Planning Regulations, 1979, so that people likely to be effected were notified and submitted their objections to the revision, if any. He further submitted that Article 52-A of K.D.A. Order, 1957 was amended on 2-5-1994 whereby clauses (2), (3) and (4) and explanation thereunder was substituted by a new clause which reads as follows:-- "(2) No amenity plot reserved for the purpose mentioned in clause (1) shall be converted to or utilized for any other purpose." Consequently, no amenity plot including the area reserved for KESC Substation and the land reserved or used for laying down the water pipeline could be converted to or for any other purpose. Defendants Nos.3 to 5 in their written statement and the counter-affidavit filed by Mr. Khawaja Abdul Rauf, Secretary of the Society (defendant No,5) admitted that the area earmarked for K.E.S.C.
6. Sub-station had been converted into two plots and the sub-station has been shifted to a new position in the 100 feet wide strip for water pipeline. They also admitted that the space reserved for the society office had been converted into ten residential plots and the office had been shifted to a new position in the 100 feet wide strips reserved for water pipeline. The Secretary of the Society who was present in Court on several dates of hearing reiterated the above position. I have considered the arguments advanced by the learned counsel for the parties and Mr. Naimur Rehman, Advocate, learned amicus curiae in the case and my conclusions are as follows: Section 54 of the Cooperative Societies Act, 1925, inter alia, provides that if any dispute touching the business of the Society arises between the Society and its members, it shall be referred to the Registrar for decision by himself or his nominee and if the parties so desire to three Arbitrators one of whom shall be the Registrar or his nominee. Section 70 lays down that no suit shall be instituted against the society. Or any of its office-bearer in respect of any act touching the business of the society until the expiration of two months next after notice in writing has been delivered to the Registrar, or left at his office, stating the cause of action, the name,description and place of residence and the plaintiffs and the relief which they claim. Section 70-A further provides that no Court or other authority whatsoever shall have jurisdiction to entertain or to adjudicate upon any matter which the Provincial Government, the Registrar, or his nominee etc. Is empowered by the Cooperative Societies Act to dispose or to determine. The present suit has been filed by specified members of the Society against the Society, certain other members of the Society and KDA seeking orders from this Court, inter alia, that the conversion of amenity/utility plots into residential plots had been done by K.D.A. In violation of law and consequently, the allotment of residential Plots Nos.R/1 to R/29 by the Society to its members who are defendants in the suit was illegal, mala fide and to direct KDA to cancel all the ownership documents of defendants Nos.6(a) to 6(cc) and to hand over peaceful possession of these plots to the Society for its use as amenity/utiltiy plots. It is a matter which involves for parties i,e, (i) the plaintiffs who are members/residents of the society, (ii) the society which has allegedly allotted the unlawfully created plots, (iii) defendants Nos. 6(a) to 6(cc) who have been allotted these residential plots and (iv) KDA which approved the alleged illegal conversion of the amenity plots into residential plots. The plaintiffs are primarily seeking relief against K.D.A. And as a consequence against the Society and defendants Nos.6(a) to 6(cc).
7. The dispute is not confined to the Society and its members. It involves an outsider, namely; K.D.A.
8. Which allegedly converted the amenity plots into residential ones in violation of law. The dispute, therefore, cannot be referred to the Registrar, Cooperative Societies or his nominee under section 54 of the Cooperative Societies as the latter has no authority under the law to decide any dispute between members of a Cooperative Society and K.D.A and declare the acts of KDA unlawful.
9. Though the suit involves acts touching the business of the Society in so far as allotment of the newly-created residential plots is concerned, its primary object is to get a declaration from the Court that K.D.A., in collusion with the Society and in violation of law, changed the use of the land and converted the amenity plots into residential ones. No notice under section 70 of the Cooperative Societies Act is necessary when a plaintiff wishes to attack in a Civil Court the mala fide conduct of an authority, namely; K.D.A. Which has nothing to do with the working or the business of the Society. Further, the plaintiffs are challenging the mala fide and illegal act of KDA in changing the use of the land and in converting the amenity plots into residential ones and the ownership documents. Neither the Provincial Government nor the Registrar or his nominee are empowered under the Cooperative Societies Act to grant such declaration or mandatory injunction. The provisions of section 70-A of Cooperative Societies Act, therefore, do not come in the way of the plaintiffs. The several judgments cited by the learned counsel in support of their arguments that the dispute between the parties is covered by the provisions of the Cooperative Societies Act are irrelevant and not applicable to the circumstances of this case. As regards the defendants' objection that the plaintiffs have not shown any right in property which has been breached, suffice it to say that every citizen has the right to live in a clean and decent environment and also has the right to ensure that the public authorities act in accordance with law and do not violate any provision of law which may affect the public-at-large. In "Ardeshir Cowasjee v. KBCA 1999 SCMR 2883, while discussing the rights of private parties in respect of public parks the Honourable Supreme Court of Pakistan has held that a resident of a distant area like Lyari Quarters has the right to file a Constitution petition in respect of a park stituated in Clifton because as a citizen of Karachi he has the right to enjoy the facility of the park with all its amenities as envisaged in the KDA Scheme. In the present case plaintiffs are owners and/or residents of houses in the society and have challenged the act of KDA and officers of the society in changing the use of the open land reserved for water conduit into residential plots and the conversion of the area earmarked for KESC Sub-station (utility) and the space reserved for Society Office (amenity) which have been converted into residential plots. In view of the judgment of the Honourable Supreme Court in the aforesaid case, the plaintiffs have the right to file the present suit in order to ensure that their right of enjoyment of life and property is not infringed by KDA or any other person by changing the use of the land from the one which was originally planned in the scheme into residential plots without due process of law. The objection regarding maintainability of the suit is accordingly rejected and the application under Order VII, Rule 11, C.P.C. Is dismissed. Now, Karachi .Building and Town Planning Regulations, 1979, Part II, Schedule D section 3 lays down the procedure to be followed in case of change of land use or conversion of amenity, utility and other plots. According to this section a housing society is required to apply to the Commissioner for the change of the land use or conversion from the original purpose of amenity or utility to any other purpose with full justification and details. The Commissioner on receipt of such application is required to invite objections from the general public through, a notice published in one English and one Urdu leading local daily newspapers which objections are to be filed within thirty days of such publication. After considering the objections received and hearing such persons as he may consider necessary, he is required to forward his recommendations alongwith the application and connected papers to the Government for orders. The Commissioner is also required to consult MP&EC (Authority constituted under SBCO, 1979) before submitting his recommendation to the Government. After amendment of Article 52-A of the K.D.A. Order 5 of 1957 which came into force from 2-5-1994, no amenity plot reserved for the purpose mentioned in clause (1) thereof could be converted or utilized for any other purpose. By letter dated 23-8-1994, K.D.A. Informed the Society that competent Authority had approved the revised Lay Out Plan of the residential Plots Nos. R-1 to R-29. Admittedly the area reserved for KESC Sub-station and 100 feet wide strip of land for water conduit was for utilities (See Schedule G. Section 3(d) of Karachi Building and Town Planning Regulations, Part H) and the Society Office was planned as an amenity for the members and residents of the Society, and therefore, could not be converted or utilized for any other purpose. This was obviously done on 23-8-1994 after of Article 52-A of. K.D.A. Order 5 of 1957 had been amended on 2-5-1994. Further, even assuming for he sake of argument that Article 52-A of KDA Order, 1957 is not applicable to the present case, no document has been produced by anyone to show that the procedure laid down in the Karachi Building and Town Planning Regulations, 1979, Part II, which are applicable to change of land use, were followed for converting the use of land reserved for amenity/utility and Society Office into residential plots. The arguments of Mr, Hani that Article 52-A of K.D.A. Order is not attracted because the 100 feet wide strip of land was an used area is misconceived because firstly the area was earmarked for water conduit which is a utility to which Regulation 16 applies and secondly open spaces are also part of the scheme the use of which cannot be converted without following the procedure provided therefor. It would not be out of place to mention here that open spaces, parks and greenery are not only soothing to the eyes and the mind but also for the spirit. They are necessary ingredients of town planning as they help in maintaining the physical and mental health of the residents of the town. It is often said by medical doctors and sociologists that if you take away open spaces, parks and greenery from the residents of a town, besides other adverse effects, the incidences of hypertension and 'crime rate in the population will go up in the area. It is, therefore, imperative that open spaces and amenities be not reduced by converting them into residential or commercial plots but retained at their original location -in the Zonal Plan Scheme to safeguard a pleasant environment where healthy bodies and minds flourish and the members of Society do not go berserk. No person, how high he may be, can or should, therefore, be permitted to change the use of such area without exceptional reason in the public interest and that also after strictly following the procedure required therefor. The argument of Mr. Naqvi, learned counsel for K.D.A., that the conversion is in accordance With law and that instead of Article 52-A Articles 38 and 40 are applicable to the present case are also not tenable. Article 38 empowers KDA to prepare housing schemes while Article 40 relates to Zonal Plan Schemes which reads as follows: "40. Zonal plan schemes.--(1) The Authority may from time to time in regard to any area wholly within or wholly without or partly within or partly without the city. Make Zonal Plans, showing the purposes for which any land in any area shall be primarily used; such plans may indicate any area reserved for residential purposes, commercial purposes, industrial' purposes, agricultural purposes, open spaces, height, coverage, type, density, spacing and any other purpose, which the Authority may consider necessary. .
(2) ...............................................................
(3) An order of the Central Government sanctioning the Zonal Plan Scheme shall be notified in the official Gazette and thereafter it shall be unlawful for any person to use or cause to be used any land for any purpose other than that laid down in the Zonal Plan Scheme unless he has been permitted to do so under subsection (4).
(4) If any person desires to use any land for any purpose other than that laid down in the Zonal Plan Scheme notified under clause (3), he may apply to the Authority for permission to do so, and the Authority may order a public hearing and give notice to all persons it deems affected. ................................................" Mr. Naqvi has not produced any document to show that the requirement of Article 40(4) of KDA Order of public hearing was followed for change in the Zonal Plan Scheme which included the area earmarked for KESC Substation, water conduit and the society office whereby the change in the use of the land was ordered. His further argument that the guidelines prescribed in Article 44 for framing of schemes had been followed and, therefore, creation of plots by conversion of use of land also has no basis. Article 44 relates to matters to .Be considered when framing improvement schemes like; the nature and condition of neighbouring areas of the city as a whole, the direction in which the city appears to expand and the likelihood of improvement schemes being required for other parts of the city and has no bearing to the present circumstances of the case. As stated above, KDA did not follow its own procedure laid down in Article 40(4) for change of the use of the land for any purpose other than that laid down in the Zonal Plan Scheme wherein specific areas had been earmarked for KESC Sub-station, Society's Office and the Main Water Conduit.
10. In Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104, it has been held that "...... . . . . . . . . . ....If on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded". This principle was reiterated by the Supreme Court in Mansab Ali v. Amir and 3 others PLD 1971 SC. 124 at 127 in the following words: "It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, ,Tribunal or Authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want 'of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction." In light of the above principle, if the initial permission for conversion of the land earmarked for KESC Sub-station. Society Office and the open area for Water Conduit is contrary to the provisions of KDA Order, 1957, Karachi Building and Town Planning Regulations and, therefore, void then all subsequent steps taken and transactions conducted on the basis of such void order would be illegal and fall to the ground. The order of the Chief Minister to K.D.A. To approve the Revised Plan submitted by the Society being contrary to law would not in any way cure the defect and make it legal. It is established law that anything done contrary to the Regulations cannot be regularised (Abdul Razzak v. KBCA PLD 1994 SC 512 and Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883. In view of this position it is not necessary to discuss the other arguments advanced by learned counsel for the defendants. The argument of Mr.Muhammad Ali Jan, learned counsel for defendants 6(a) to 6(cc),. That his clients are bona fide purchasers for consideration and without notice is a' question of fact which cannot be decided at this stage. From the information available on record, the plea of the learned counsel does not appear to support his contention. As prudent men it was the duty of the purchasers of the plots to engage competent lawyers to make inquiries about the properties they were going to buy, especially in view of the illegal conversions and allotments of plots that were rempant in the city about which, there were great hue and cry from conscientious citizens and news about Court cases and protests by various persons and organizations were constantly appearing in newspapers. Had they done so, their prudent lawyers after inquiry and checking of the Mans Would have come to know that the plots in question were created by converting the areas earmarked for amenities, utilities and open spaces in the Zonal Plan Scheme into residential plots in violation of the provisions of Karachi Development Authority Order, 1957 and the Karachi Building and Town Planning Regulations, 1979 and would have advised the purchasers accordingly.
11. Prima facie, the purchasers acted negligently and did not make the inquiry or search they ought to have made and therefore cannot be regarded as bona fide purchasers. Be that as it may, if ultimately Ur interest of any defendant is adversely affected he Would have a cause of action against any or all persons, irrespective of their designation or office, who were responsible for causing loss or injury to him. As regards the objection of Mr.Farrukh Zia Shaikh that the doctrine of Caveat Emptor is not considered good law any more in respect of immovable property and has now been superseded by Consumer Protection Act, 1987; suffice' it to say that it appears that Mr. Shaikh is not yet aware that from 14th August, 1947 the Queen of England stopped making law for what is now known as the Islamic Republic of Pakistan.
12. By showing that the alleged change of the use of land from its original purpose of amenities and utilities to residential plots is patently illegal, the plaintiffs have made out more than a prima facie case for grant of temporary injunction. Not only the plaintiffs but all the inhabitants of the area would suffer irreparable. Loss if the defendants are allowed to raise construction in the area earmarked for purposes of amenities, utilities and open space as they have a vested right in the scheme and their rights to enjoy the benefits of the amenities, utilities and open spaces would be affected which cannot be compensated in terms of money. Additionally allowed construction on unlawfully converted plots would amount to giving premium on wrongdoing Suleman Mala v.
13. Karachi Building Control Authority 1990 CLC 448. The balance of convenience is also in favour of grant of injunction because if the injunction is not granted and the defendants are allowed to raise construction or deal with the plots in question it would cause great inconvenience to the defendants themselves and the owners and residents of houses in the Society. It would, therefore, be just and proper to pass an order in such a way that the allottees of the plots in question, if they have any right in the plots of land which were illegally created may not suffer further loss. I am, therefore, of the view that the defendants Nos.6(a) to 6(cc) be restrained from raising any further construction on the plots in question, sell, transfer, mortgage, charge or deal with them in any manner until the decision of the suit. The Temporary Injunction Application is accordingly granted in the above terms. It would be pertinent to mention here that during the course of arguments, Mr. Islam, learned counsel for the plaintiffs, complained that the Society had also converted a part of the area earmarked for a park into residential plots. Accordingly, Messrs Bilgrami and Faruque, Architects were appointed Commissioner to survey the disputed area and submit their report. In their Report dated 3-3-1998 the Commissioner has, inter alia, pointed out that according to the documents made available to them Plot Nos.R-I to R-12 appear to have encroached into the area earmarked for the park which was also occupied by encroachers. The defendants filed their objections to the said report. Be that as it may, the final position with regard to the Report and the newly-converted plots will be decided after recording of evidence by the parties. The suit involves valuable rights of the parties. It was filed on 12-11-1995. More than four years have already passed. It would, therefore, be in the interest of justice if it is decided expeditiously.
14. Defendants Nos. 3 to 5 and few other defendants have already filed their written statements.
15. Defendants who have not filed their written statements so far are hereby directed to do so within three weeks whereafter the matter may be placed in Court for settlement of issues. The counsel shall ensure the attendance of their parties on the said date so that they may be examined under Order X, C.P.C. In order to reduce the controversy and the extent of the evidence required for early disposal of the suit.