1. ' The brief facts relating to the suit are that one Raja Salahuddin Chaudhry, owner of Plot No,D-19, Block 1, Karachi Administrative Cooperative Housing Society Limited, admeasuring 958.33 square yards, started construction on the said plot without approval of the Karachi Building Control Authority (K.B.C.A.); a notice was accordingly issued and demolition action taken against him.
2. Thereafter, the owner submitted a building plan which was approved on 3-9-1998 for Ground, First Floor for a residential bungalow. The owner again started construction in violation of the Approved Plan whereupon after necessary notice demolition action was taken on 20-11-1998, 21-11-1998 and 30-12-1998; however, the owner then produced a status quo order from the Court of IVth Senior Civil Judge, Karachi East, in Suit No,1011 of 1998. It transpires that the owner then filed another Suit No,1556 of 1998 in the High Court on 8-12-1998 stating that the property was worth Rs,500,000, and therefore, the Senior Civil Judge was not competent to try and entertain the matter. On 22-12-1998 he obtained another status quo order and continued the construction under the umbrella of the status quo order. On 17-12-1999. Mr. Pur Dil Khan, A.C.P. Of K.B.C.A. Appeared and informed the Court that the owner had submitted a proposed plan for ground plus two floors which was rejected and the plan was approved for ground plus one floor, that the plaintiff (owner of the building under construction) in Suit No,1556 of 1998 had committed gross violations of the approved plan and raised construction on compulsory open spaces and even on railway land as a result of which the Governor of Sindh had written a letter to K.B.C.A. To take action against the illegal construction in accordance . With law. Consequently, the Court appointed the Nazir as Commissioner to inspect the site and submit his report about the construction on the plot in dispute. After inspection, the Nazir submitted his Report ' dated 23-2- 1999 wherein he pointed out several violations of the approved plan and the Karachi Building and Town Planning Regulations including, inter alia:
(i) Construction of Basement + Ground + Two Floors + Third Floor with partition wall of two flats partially built up to a height of four feet;
(ii) Covering of front, right side and left side compulsory open space;
(iii) Excess area on each floor.
(iv) Falts/Units constructed instead of an approved bungalow.
3. ' The Nazir submitted photographs of the construction alongwith the report which are available on the record of Suit No,1556 of 1999. In his report he also stated that no one was in occupation of the building at the time of his visit and in spite of the status quo order he saw freshly constructed works which indicated that construction was in progress.
4. ' Accordingly on the basis of Nazir's Report, the Court on 3-3-1999 directed K.B.C.A. To take over the property in dispute and seal the same till further orders and on the request of Mr. Farrukh Zia Shaikh, learned counsel for the plaintiff in the said suit adjourned the hearing to 18-3-1999 to enable him to file a reply to the Nazir's Report and also a counter-affidavit to the additional affidavit of K.B.C.A. From the reading of the order sheet it appears that Mr. Farrukh Zia Shaikh neither filed any counter-affidavit or objections nor appeared in Court thereafter on the several dates when the matter was adjourned for hearing. Consequently, on 13-9-1999 plaintiff's injunction application in the said suit was dismissed and on K.B.C.A's. Application under Order XXXIX, Rule 4, C.P.C. The.Latter were given permission to take action in respect of the unauthorized construction in accordance with law. As the defendant K.B.C.A. Had filed the written statement, the matter was fixed for settlement of Issues on 17-9-1999 when none appeared for the plaintiff and Suit No,1556 of 1999 filed by the owner was dismissed and in light of the Nazir's Report and the Court order dated 13-9-1999. K.B.C.A. Was directed to submit within three months a report of the action taken against the owner, the builder, the architect and the K.B.C.A. Officers responsible for the unauthorized construction on Plot No,D/19, Block I, Karachi Administrative Housing Society, Karachi.
5. ' It appears that on 26-3-1999 one Fayazuddin (plaintiff herein) filed the present Suit No,389 of 1999 for declaration and injunction alleging himself to be the owner or Flat No,S-11 on the Second Floor admeasuring 1475 square feet together with apportioned 1/14th undivided share in the Plot No,D/19, Block 1, Karach Administrative Housing Society admeasuring 958.33 square yards approximately.
6. He sought a declaration that the threat of ejectment and demolition of the building on Plot No,D/19, Karachi Administrative Housing Society was against law and violation of principles of natural justice and Permanent Injunction to restrain, inter alia, K.B.C.A. And Raja S. Chaudhry from dispossessing him from the flat and demolishing the building or any part thereof. He also filed an application for Temporary Injunction to restrain, inter alia, K.B.C.A. And Raja Salahuddin Chaudhry (owner) from taking any action in violation of principles of natural justice and dispossessing/ejecting the plaintiff from his flat as disclosed in the title of the suit. He produced an Allotment order dated 22-1-1999 and a possession letter dated 29-1-1999 signed by the builder/owner Salahuddin Chaudhry and an Indenture of Sublease dated 16-3-1999 between Raja Salahuddin Chaudhry (owner) through his attorney Naveed Alam Baweja son of Ferozuddin Baweja and the plaintiff herein which was registered on 16-3-1999 with the Sub-Registrar T Division XI, Karachi. On 31-3-1999 the Court passed an ad interim order directing the parties to maintain status quo till the next date of hearing which status quo continued from one hearing to the other and apparently is still in the field. Meanwhile, on 22-4-1999 the present suit No, 389 of 1999 was ordered to be heard alongwith Suit No,1556 of 1998 but somehow the two suits got separated and Suit No,1556 of 1998 was dismissed on 17-9-1999 as described above.
7. ' After service of summons and notices of the Injunction application in this suit. K.B.C.A. Filed their written statement and counter-affidavit while the owner/builder, defendant No,4 in spite of service did not care to appear.
8. ' Mr. Bashir Ahmed Shaikh, learned counsel for the plaintiff referred to section 6(1) of Sindh Building Control Ordinance, 1979 and urged that the plaintiff was a bona fide purchaser of the property, and therefore, K.B.C.A. Should not be permitted to demolish the unauthorized structure because K.B.C.A.
9. Itself was a party to the unauthorized construction by their negligence and omission. The relevant provisions of section 6 of the Sindh Building Control Ordinance, 1979 read as follows: 6: Approval of plan.--- (1) No building shall be constructed before the Authority has, in the prescribed manner, approved the plan of such building and granted no objection certificate for the construction thereof on payment of such fee as may be prescribed:
(2) No building mentioned in subsection (I) shall be, occupied by any person or shall be allowed by the builder to be occupied, before the Authority has, on application of the occupant or owner, issued occupancy certificate, in such manner as may be prescribed.
(3) No building mentioned in subsection (1) shall, except with the permission of the Authority, be used for the purpose other than that for which its plans were approved. ............ (underlining added)
10. ' Relying on the provisions of section 6(1), he vehemently argued that if a building has been constructed/completed and is visibly complete in all respect the presumption would be that it has been constructed in accordance with the approved plan and the relevant laws and that if there was any violation during the course of construction K.B.C.A. Would not have allowed the builder to complete the same and would have demolished the unauthorized portion. He added that when he purchased and occupied the premises there were gas, electricity and water connections and the building had a beautiful elevation and referred to several photographs which he had attached with the plaint. He urged that if there was any violation of the approved plan or of the building laws.
11. K.B.C.A. Should have informed the Sub-Registrar not to register any sublease in respect of the premises and should have issued a public notice in newspapers to warn the general public and unwary purchasers not to buy any flat or apartment in the unauthorizedly constructed building on the said plot. In this connection the learned counsel referred to Article 129, Illustrations (e) and (f) of Qanun-e-Shahadat according to which certain presumptions in favour of the plaintiff exist and support his claim and arguments. The relevant provisions of Article 129 read as follows: "129. Court may presume existence of certain facts.
12. Illustrations
(e) that judicial and official acts have been regularly performed;
(f) that the common course of business has been followed in particulars cases.
13. It is pertinent to mention here that the provisions of Article 129 are discretionary and not mandatory. The words "may presume" in the Article grants to the Court wide discretion to make or not to make a presumption according to the circumstances of the case. Even if such presumption is made, it is not final and is rebuttable. It is also well-established that while making a presumption the Court must use its common sense and experience in judging the effects of the particular facts in the prevailing circumstances. The Court must also keep in mind that there would be no scope for presumption where certain facts have been proved by evidence and not rebutted.
14. ' Illustration (e) referred to by the learned counsel relates only to judicial and official acts. The present matter does not relate to judicial acts and the reference to this part of the illustration is, therefore, irrelevant. According to reported judgments cited by Chitaley on the Evidence Act, 1872 (1956 Edition) the term "official acts" has been used in this illustration in the sense that prima facie there is a presumption that official orders have been issued in exercise of the powers vested in the Government officers or that officers are exercising their powers in accordance with the provisions of the relevant law etc. According to the illustration, therefore, the presumption in this case would mean that the orders passed by K.B.C.A. Were issued in the exercise of the powers vested in the authority and that the officers exercising the powers did so in accordance with the procedure provided in the Sindh Building Control Ordinance, 1979 and Karachi Building and Town Planning Regulations, Therefore, the reference to the official acts in the illustration is also irrelevant. Now, with reference to Illustration (f) in Secretary of State v. Nandlal AIR 1928 Nagpur 52 it was held that common course means the most common in the experience of the judge who has to decide the point. This illustration would not help the plaintiff as my experience of the manner in which law is flouted by the builders in Karachi is contrary to what the learned counsel wants me to presume.
15. ' The arguments of the learned counsel relating to presumption are not warranted by the facts and documents available on the record of the suit. It is absolutely clear that the plaintiff could not have occupied the second floor premises on 22-1-1999 (The date shown in the Possession Letter) because the report of the Nazir dated 23-2-1999 clearly states that the building was incomplete and unoccupied when he visited the site on 19-2-1999 in the presence of Mr. Farrukh Zia Shaikh, Advocate for the builder Raja Salahuddin Chaudhry, plaintiff in Suit No,1556 of 1998 and defendant No,4 in this suit, which fact is supported by photographs taken and attached by the Nazir with his report. The report of the Nazir has not been disputed or rebutted by anyone. Further, it is a matter of common knowledge that unscrupulous builders obtain permission for construction of a residential bungalow consisting of ground plus one floor and instead construct high rises consisting of umpteen floors in violation of law. Nowadays everyone knows about the protests of the people and organizations against the destruction of the environment by unauthorized construction, articles relating to illegal construction and news of Court orders and judgments against illegal construction continually appear in newspapers. K.B.C.A. Also publishes public notices very often warning the people at large about the illegal construction going on in the city and advising them to make proper inquiries from the authority before purchasing any property. A culture of corruption and malpractice by the builders on one side and the officers responsible for controlling and supervising the building activities on the other has become the order of the day.
16. Keeping in mind the common course of natural events, human ,conduct and public and private business in relation to construction of buildings in Karachi no prudent man would normally presume that the owner, builder, architect and K.B.C.A. Officers would have performed their duties in letter and spirit of the law in completing the construction of any building. In fact, a prudent man would be extra-careful and make extraordinary detail inquires because in the construction industry in the City of Karachi obedience to law appears to be an exception rather than a rule. The plaintiff should have acted like a prudent man and conducted detail inquires expected of a prudent person. He neglected to do so. He cannot now take the plea that because the building stood constructed on the site it should be presumed that it had been built strictly in accordance with law and he should be given the benefit which the law requires to be given to a prudent man.
17. The plaintiff has manifestly made false statement about obtaining possession of the flat and has apparently filed the suit in collusion with the builder. The arguments of Mr. Shaikh learned counsel for the plaintiff, in the circumstances described above are untenable. If sun arguments are accepted then chaos would rule society instead of law.
18. ' Mr. Shaikh/ very forcefully argots that section 6(2) of Sindh Building Control Ordinance, 1979 is applicable to the owner and not to the plaintiff (occupant) because it is the owner who is required and is in a position to approach K.B.C.A. With reference to the approved building plan to obtain the occupancy certificate and the occupant has no right whatsoever to do so. It appears that the learned counsel is either under some misconception or has not read section 6(2) of Sindh Building Control Ordinance, 1979 properly. The said provision clearly states that no building shall be occupied by any person or shall be allowed by the builder to be occupied before the Authority has, on application of the occupant or owner, issued an occupancy certificate. The provision, though according to some may not be happily worded, clearly states that the occupant is one of the persons (whether lie has occupied the premises by mistake or in ignorance) who must apply to K.B.C.A. For an occupancy certificate. Further, the legislature has intentionally used the term "any person" in the subsection (2) of section 6 of the said Ordinance. The word "any" is a word which D excludes limitation. It also means "one indiscriminately of whatever kind" Zubair Ahmed v.
19. Sindh1 Labour Appellate Tribunal PLD 1985 Kar. 760, 769. In the present context the term "any person" refers to any person in the world who occupies or intends 1 to occupy a newly constructed building. Therefore, it is the duty of every builder which includes an owner and his agent, to ensure that the constructed building is not occupied by any person until K.B.C.A. Has issued an occupancy certificate in respect thereof. Likewise, it is also the duty of every person, who intends to occupy any premises in a building which has been recently constructed, to ensure that the owner has obtained the occupancy certificate in respect of the building and if this has not been done it is his duty to ask the owner to provide him a copy of such certificate or obtain the same himself (section 6 of the Sindh Building Control Ordinance, 1979). It is an admitted position that the plaintiff did not do what he was required by law to do as .a prudent man in order to claim the benefit of a bona fide purchaser without notice. Therefore, it does not suit Mr. Shaikh to advance such an argument before this Court.
20. ' Mr. Shaikh also referred to Article 4 of the Constitution which enjoins that every citizen is entitled to protection of law and to be treated in accordance with law and that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. He also referred to Article 24(2) of the Constitution which states that "no property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides compensation therefor". On the basis of the aforesaid two Articles of the Constitution, he submitted that allowing K.B.C.A. To demolish the unauthorized construction on the second floor would amount to compulsory acquisition and deprivation of plaintiff's right of property and added that if K.B.C.A. Is permitted to demolish the alleged unauthorized construction in his possession K.B.C.A. Should compensate him by paying the market price of the property because it was negligent in its duty and was in league with the builder who are both responsible for the said unauthorized construction. I am afraid this argument has no basis as Caveat Emptor is an established principle of law Which requires that the buyer of a property should act prudently and make reasonable enquiry before purchase. If the plaintiff had made inquiries from the owner or K.B.C.A. Without whose approval the property cannot be built or sold, he would have come to know about the unauthorized construction and the absence of the occupancy certificate and the N.O.C. For sale of the premises in question. It is apparent that the plaintiff did not take reasonable care but rather wilfully abstained from making an inquiry or search which he ought to have made and acted with gross negligence. He cannot, therefore, now complain that the unauthorized structure should not be removed because of the alleged collusion of K.B.C.A., Officers with the builder. The plaintiff has also not claimed any relief for damages or compensation in his suit which has been filed for the limited purpose of declaration and injunction only. It is an admitted position that the plaintiff acquired the flat premises while the litigation in respect of the unauthorized building in which the flat is situated was pending in Court. It is also an admitted position that the major portion of the building was constructed during the pendency of the proceedings before the Civil Court and before the High Court under the umbrella of a status quo order (such conduct amount to contempt of Court and the party found guilty of the offence is liable to punishment with imprisonment and fine). The rule of lis penden is, therefore, applicable to the present case and the plaintiff's title or interest in the flat premises is subject to the judgment of the Court in respect of the unauthorized construction of the building Asghar Ali alias Sajid v. Fazal Karim 1989 SCMR 1781 and Ardeshir Cowasjee v. K.B.C.A. And others 1999 SCMR 2883. Further, the suit is not maintainable under section 56 of the Specific Relief Act, 1877. This Court cannot stop K.B.C.A. Or any other authority having competent jurisdiction from doing its statutory duty for which it has been created.
21. ' Mr. Ikram, learned counsel for K.B.C.A. Submitted that the owners/builders of unauthorized buildings besides filing a suit themselves also encourage third parties or fictitious persons to whom they ostensibly sell the flats on paper only to file suits in order to obtain status quo orders, carry on construction thereunder and thereafter urge before the Court that third party interests have been created and if the unauthorized construction is not regularized and ordered to be demolished the plaintiffs as unwary purchasers would suffer huge financial loss and lose all their lives savings which they have invested in purchase of immovable property. He submitted that in this case also the position is the same as Mr. Raja Salahuddin Chaudhry, the builder, after filing Suit No,1556 of 1998 arranged with Mr. Fayazuddin to file this suit in'an attempt to gain the sympathy of the Court and obtain an order restraining K.B.C.A. From doing its statutory duty of demolishing the unauthorized construction. From the facts of the case narrated above, Mr. Ikram Siddiqui's contention appears to have great force. The plaintiff/owner of the building who had engaged Mr. Farrukh Z. Shaikh in Suit No,1556 of 1998 and who is defendant No,4 in these proceedings has chosen not to contest the proceedings apparently because he cannot either dare to refute the violations of law committed by him in the construction of the building and sale of flats or support the present plaintiff. The conduct of the plaintiff as already described above has not been clear and above board which disentitles him to any relief from the Court.
22. ' Mr. Shaikh, learned counsel for plaintiff, cited the cases of:
(i) Datari Construction (Pvt.) Ltd. v. A. Razzak Adamjee 1995 CLC 846
(ii) Multilines Limited v. Ardeshir Cowasjee and others 1995 SCMR 362;
(iii) Abdul Razzak v. K.B.C.A. PLD 1994 SC 512; and
(iv) Mst. Zubaida A. Sattar and others v. K.B.C.A. 1999 SCMR 243. In support of his arguments which have been discussed above and rejected.
23. ' It may be stated with respect that the law relating to construction in the Province of Sindh and especially for the City of Karachi has been very succinctly and ably explained and reiterated by the Honourable Supreme Court in its judgment dated 10-5-1999 in the case of Ardeshir Cowasjee and others v. K.B.C.A. And others 1999 SCMR 2883 wherein it has been held that the law laid down in Abdul Razzak's case shall prevail over the law cited in Multiline Limited case to the extent of any inconsistency between them. A few observations of the Honourable Supreme Court which are relevant for the purpose of this case are as follows; ".... The major part of the above portion of the proposed building has been constructed after the filing the above Constitution petition and therefore, the doctrine of 'lis pendens' is applicable to the case in hand i,e, That the third party will be bound by the result of the litigation." (page 2911)
24. ".... The legal position enunciated inter alia in the above quoted extract from the judgment in the case of Abdul Razak Karachi Building Control Authority/and others PLD 1994 SC 512 is "in consonance with the provision of the Karachi Development / Authority Order, 1957, Sindh Building Control Ordinance, '1979 and the Building Regulations, 1978. The power to regularize contained in the Ordinance and the Regulations is intended and designed to be exercised when irregularity is of the nature which does not change the complexion or character of the originally proposed construction. The Government or the Authority under the Ordinance does not enjoy unbridled each unfettered power to compound each and every breach of the Regulations. The Regulations should be applied for the benefit of the public and not for favouring an individual. Simpliciter the factum that on account of tremendous increase in the population in Karachi the situation demands raising of high rise, buildings, will not justify the conversion of residential plots originally intended to be used for building ground-plus-one buildings thereon without providing for required water, electricity, gas, sewerage lines, streets and roads etc." (page 2916)
25. ' In the case of Mst. Zubaida and others v. K.B.C.A. 1999 SCMR 243, the Honourable Supreme Court observed as follows: "7. We may point out that unfortunately has become common practice in 'Karachi that some builders obtain approval of plans for raising buildings Ground-plus-One but actually they construct multi-storeyed high-rise buildings on the sites to the detriment of the neighbours in the locality concerned as it disturbs the amenities besides creating environmental problems. Such practice is to he depreciated as was pointed out in the judgment of this Court in Abdul Razak v.
26. Karachi Building Control Authority and others PLD 1994 SC 512. It may further be observed that some builders raise unauthorized constructions after obtaining status quo orders form the Courts."
27. ' It is, therefore, abundantly clear from a reading of the above referred cases that the building in which the premises of the plaintiff are situated has prima facie, been built in violation of the provisions of, inter alia, Sindh Building Control Ordinance, 1979, the Approved Building Plan and Karachi Building and Town Planning Regulations. The plaintiff has been guilty of negligence in not making inquiries from K.B.C.A. And has come to this Court with unclean hands. It has also been confirmed by the Honourable Supreme Court of Pakistan that no person can change the nature of the building which the owner/builder has evidently done in the present case by changing in residential bungalow into flats thereby converting it into a commercial one, Abdul Razaak v.
28. K.B.C.A. PLD 1994 SC 512 at 526 confirmed by Ardeshir Cowasjee's case, (supra). Further, according to Sindh Government Gazette Notification relating to Zoning Laws for the area of Karachi Administrative Society published in the Sindh Government Gazette of 28 December, 1972, construction on residential plots ranging from 600 to 2,600 square yards, the covered, area cannot be in excess of one-third of the area of the plot. The area of the open plot in question is 958.33 square yards. The covered area of the plot, therefore, cannot be more than 319.44 square yards whereas the owner/ builder has covered the entire area of the plot thereby violating the Zoning Law of the area (See Karachi Building and Town Planning Regulations, Part II, page 152). By constructing a basement on the entire plot, covering the compulsory open spaces all around the building and constructing ground plus three floors with several flats therein the owner/builder violated Regulations Nos.28 and 29 of Part I of the Karachi Building and Town Planning Regulations.
29. He has changed the entire complexion and character of structure which was originally approved by K.B.C.A. For a residential bungalow into a flat site. This is not permitted by law and -cannot be regularized by K.B.C.A. Abdul Razak v. K.B.C.A. PLD 1994 SC 512 at 526. The construction is thus, prima facie contrary to the Sindh Building Control Ordinance, 1979 and the Karachi Building and Town Planning Regulations. It is the bounden duty of K.B.C.A. To ensure that no unauthorized construction takes place within the area of its jurisdiction. Now Regulation 16 of Karachi Building and Town Planning Regulations empowers K.B.C.A. To require any person who has carried out building works contrary to the provisions of the Regulations to show cause why such building works or part thereof shall not be removed or altered to comply with the regulations and by regulation 16(2), paras.(a) and (b), the Authority shall require such person,. If he fails to show sufficient cause, to demolish the whole building or part thereof or to alter the works so as to bring it in conformity with the Regulations. It, therefore, follows that the Legislature intended that any building or a part thereof erected in contravention of the Regulations must he removed or altered to conform to the Regulations". Mst. Feroza Hajiani v-. Abdul Razaak 1992 MLD 527, 534. K.B.C.A., therefore, after following the prescribed procedure is duty bound to demolish all construction erected in contravention of the law. It also has the power to forcibly evict the occupant therefrom.
30. Afzal Khan v. K.D.A. PLD 1998 Kar. 283, 286.
31. In view of the above discussion, it is clear that the plaintiff does not have a prima facie case for Injunction. He has come to this Court with unclean hands and made a false statement on oath, inter alia, with regard to obtaining possession of the flat. It is also established that the plaintiff's suit is mala fide as the flats have been constructed in gross violation of law by abusing the process of the Court in raising construction under the umbrella of a status quo order and withholding from the Court relevant information about the litigation. The relief claimed cannot be granted under the provisions of the Specific Relief Act, 1877. The plaintiff filed this suit knowing fully well that it was not maintainable and vexatious to his knowledge. Consequently, the Injunction Application is dismissed and the Suit is rejected under Order VII, Rule 11, C.P.C. With special costs of Rs,10,000 to be paid by the plaintiff to K.B.C.A. Who shall utilize this amount for purchase of a computer for their Legal Department.
32. ' In view of the dismissal of the Suit K.B.C.A. Is at liberty to take action against the owner, builder, architect and K.B.C.A., Officers responsible for violation of the building code in accordance with law and the principles of natural justice. It shall submit a compliance report within three months of the action taken against the violations committed by the owner/builder, architect and K.B.C.A., Officers because of whose dereliction of duty the unauthorized construction of the building took place in this case.
33. ' To come up for consideration of compliance report on 3rd April, 2000.
34. ' Meanwhile, office is directed to issue notice through the Registrar to the sub-Registrar T Division XI, City Courts, Karachi to appear in Court on 17-1-2000 to explain how he determined the Stamp puty on the Indenture of sub-lease dated 16-3-1999 (Registered No,1096, dated 16th March, 1999) and what precautions he took to ensure that no law or official instruction issued by K.B.C.A. Or any other authority was being violated by him while registering the said document.
35. ' K.B.C.A., Advocate shall be present in Court on the said date to assist the Court in its inquiry.