1. Pursuant to an application dated 3-5-1997 by Al-Kehkeshan (Pvt.) Limited through .Its Director Kamran Feroze, Karachi Building Control Authority (K.B.C.A.) on 23-6-1997 approved a building plan for construction of a building proposed for Plot No.21-A, Central Commercial Area, Block-2. P.E.C.H.S., Karachi, consisting of Basement + Ground + 1/3 left + 4 Upper Floors only (Commercial). In response to Al---Kehkeshan's application dated 30-6-1997, K.B.C.A. By letter dated 3-7-1997 issued a No-Objection Certificate for sale and advertisement of shops and offices in the Project "Four Square Shopping Mall" to be built on the said plot. Thereafter, on 5-7-1997 Messrs Four Square Enterprise through its sole proprietor Haji Tayyab allegedly on the basis of a sale-deed dated 19-6- 1997 in his favour tiled the present suit for declaration and perpetual injunction inter alia, seeking a declaration that the attempts made by K.B.C.A. On 4-7-1997 for demolition of plaintiff's structure, resistance in the completion of construction work and progress and interference in the plaintiff's user and enjoyment thereof and the threats advanced for cancellation/withdrawal/withholding approval of NOC were illegal, mala fide, collusive, unlawful, discriminatory, without jurisdiction and that the plaintiff was the owner of the abovementioned property arid entitled to use and enjoy the same and a Perpetual Injunction restraining K.B.C.A. And its staff etc. From demolishing/damaging the plaintiff's building structure existing and in process of completion on the above-referred plot and from withdrawing/withholding/cancelling the approved building plan or NOC for sale and advertisement or interfering with the plaintiff's construction, disposal etc. In paragraphs 4, 5 and 6 of the plaint the plaintiff asserted that he had commenced the construction work as per the approved plan which was progressing on site in strict compliance of the relevant laws; however, on 4-7-1997 without any written notice or order officers of the defendant attempted to pull down/damage the construction already carried out and resisted the plaintiff construction work in progress and also attempted, to dispossess him but left the site after advancing threats of their reappearance with a squad for demolition of the structure and eviction of the plaintiff therefrom and sealing the same. Thereupon the plaintiff approached K.B.C.A. Hierarchy but without any success. In para. No. 7 the plaintiff unequivocally asserted that the construction was being raised on the plot according to the approved plan while K.B.C.A. And its officers and its staff were acting in excess of their jurisdiction with mala fide intentions and ulterior motives. Alongwith the suit, Haji Tayyab also filed an application under Order XXXIX, inter alia, for restraining K.B.C.A. From interfering with his construction on the plot. On 7-7-1997 the Court issued notice to K.B.C.A. For 8-7-1997. On the said date K.B.C.A.'s counsel requested for time to file a counter-affidavit which was allowed and at the same time the Court also granted ad interim injunction. On or about 2-9-1997 the plaintiff filed an application under Order XXXIX, Rule 2(3), C.P.C. (C.M.A. No. 5616 of 1997) requiring the Court to punish, among others, the Chief Controller of Buildings and Public Relations Officer of K.B.C.A. For violation of the ad interim injunction on the ground that K.B.C.A. Had published a Notice in daily "Jang" on 31-8-1997 to the effect that permission for construction in respect of Four Square Shopping Mall had been obtained irregularly during the previous regime and that the matter was pending in Court. In the counter-affidavit to the said application K.B.C.A. Submitted that there was no construction existing at the relevant time and attached several photographs in support thereof confirming this fact and showing that except for digging and excavation for foundation work no construction had been carried out at the site, that the assertions made in the plaint regarding construction were false and that ad interim injunction was obtained to carry out illegal construction. K.B.C.A. Also pointed out that the approved plan was not in the name of Haji Tayyab, the plaintiff in the suit and also submitted that the plan had been approved in violation of law. In the affidavit-in-rejoinder the plaintiff did not deny or challenge the photographs produced.With the counter-affidavit and the fact that on the date of filing of the suit there was no construction on the project site. The plaintiff, however, disputed the assertion that the approval of the building was illegal.
2. On 17-9-1997 K.B.C.A. Filed an application under Order XXXIX, Rule 4, C.P.C. (C.M.A. No. 6023 of 1997) wherein, inter alia, it states that the construction plan was contrary to the regulation and was got approved through improper means, that under the umbrella of ad interim order plaintiff was carrying on the construction in violation of the approved building plan and that K.B.C.A. Be allowed to carry out its statutory duty in accordance with law. On 1-10-1997 K. B. C. A. Filed another application under Order VII, Rule 11, C.P.C. (C.M.A. No.6468 of 1997) challenging the maintainability of the suit as the plaintiff had not given the mandatory two months' notice required under section 20- A of Sindh Buildings Control Ordinance, 1979 (SBCO, 1979). The matter was listed for hearing on several dates but was adjourned for one reason or the other. Finally, on 1-4-1998 the Court modified the ad interim order to the extent that it permitted K.B.C.A. To take action against the plaintiff in case they raised any construction in violation of the approved building plan and consequently on 13-7-1998 C.M.A. No. 6023 of 1997 of K.B.C.A. Was disposed in terms of the said order.
3. Mr. Naimur Rehman, learned counsel for K.B.C.A. In support of his application under Order 7, Rule 11, C.P.C. Submitted that the notice required under section 20-A of SBCO, 1979 had not been given by the plaintiff and as such the suit was not maintainable. In support of his argument he cited AIR 1949 PC 143; PLD 1976 SC 785; PLD 1992 Karachi 71, PLD 1995 Karachi 399. He further submitted that in the application under Order XXXIX, Rule 4 (C.M.A. No.6023 of 1997), K.B.C.A. Had clearly stated that the suit was mala fide, that the plaintiff had not started any construction over the site and had filed photographs of the site showing that at the relevant time only digging of the foundation was in progress which had not been denied by the plaintiff. Accordingly, the suit filed by the plaintiff was incompetent as there was no question or occasion' for K.B.C.A. To issue any notice or threat to pull down any construction which was not in existence.
4. 1998 MLD 1771 in support of his argument. Mr. Malik further submitted that pendency of the suit is itself a notice and filing of the suit should be deemed to be sufficient notice under section 20-A of SBCO, 1979. He referred to the cases reported in 1985 SCMR 24, 1987 CLC 13 and 1993 CLC 349 in support of his contention.
5. I have heard and considered the arguments of Mr. Naimur Rehman, learned counsel for K.B.C.A. In support of his application for rejection of the plaint and Mr. M. Aziz Malik, Advocate for plaintiff against the same.
6. To understand the argument of Mr. Naimur Rehman that Notice under section 20-A, SBCO, 1979 is mandatory it would be pertinent to first A reproduce the provisions of section 80, C.P.C. As it stood prior to the amendment in 1962: "80. No suit shall be instituted against the Government, or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to or left at the office of---
(a) .......................................
(b) .......................................
7. (c)in the case of a suit against a State Government, a Secretary to that Government or the Collector of the district, and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice had been so delivered or left."
8. "[16] ....The provisions of section 80 of the Code are imperative and should be strictly complied with before it can be said that a notice valid in law has been served on the Government. In the present case it is not contended that any notice on behalf of plaintiffs 2 and 3 was served on the Government before the filing of the suit... For these reasons the suit against the Government must be held to be incompetent and the appeal fails."
9. Further, section 273(i) of the Cantonments Act, 1924 states that: "no suit shall be instituted against any Board or against any member of the Board ....In respect of any act done or purported to have been done in pursuance of this Act ....Until the expiration of two months after notice in writing has been left at the office of the Board ...." The Supreme Court of Pakistan in Muhammad Ilyas Hussain v.
10. Cantonment Board, Rawalpindi PLD 1976 SC 785, held that in the absence of two months' prior notice required under section 273(1), the suit was not competent. Similarly Article 131(1) of K.D.A.
11. Order, 1957, reads as follows:- "131.' Notice of suit against Authority, etc.---(1) No suit shall be instituted against the Authority or any member or any person associated with the Authority or against any servant of the Authority or against any person or persons acting under the direction or authority of the Chairman or of any officer or servant of the Authority, in respect of any act purporting to be done under this Order or the Rules or Regulations made thereunder until the expiration of one month from the delivery of a written notice at the Authority office or the-place of abode of such member, officer, servant or person, stating the cause of action, the name and place of the intending plaintiff; and the nature of the relief sought."
12. The above provision has been considered in several judgments of this Court and in all of them the Court, has held that the requirement of a notice is I mandatory and the suit would be barred for want of notice under Article 131 of K.D.A. Order, 1957 (See Zainab Hajiani v. AI-Hilal Cooperative Housing Society and 2 others PLD 1978 Karachi 848, Pakistan Railways v: Karachi Development Authority and 5 others PLD 1992 Karachi 71 and Zia--ur-Rehman Alvi v. Allahabad Cooperative Housing Society Ltd. And 2 others PLD 1995 Karachi 399.
13. Now section 20-A of the Sindh Buildings Control Ordinance, 1979, reads as follows: "20-A Notice for institution of suit.--No suit shall be filed against the Authority or any of its employees in respect of anything-done or purported to be done by the. Authority or such employee under this Ordinance except after expiration of-sixty days next after notice in writing has been delivered to or left at the office of the Authority or employee as the case may be."
14. The wordings of section 20-A, S.B.C.O., 1979 reproduced above are in 'B essence similar to wordings of the unamended section 80, C.P.C. Section 273(i) of the Cantonments Act, 1924 and Article 131(1) of K.D.A. Order, 1957. In view of the various judgments reproduced above, it can be said without any hesitance that no suit can be filed against K.B.C.A. Except after expiration of sixty days' written notice has been delivered to or left at the office of K.B.C.A.
15. The cases of Syed Azhar Imam Razvi v. Mst. Salina Khatoon.1985 SCMR 24 is in respect of Notice to transfer of ownership as envisaged under the West Pakistan Urban Rent Restriction Ordinance, 1959 and of Muhammad Bux v. Karim Bux 1987 CLC 13 relied upon by Mr. Malik is in respect of notice for vacating the premises under section 14 of Sindh Rented Premises Ordinance, 1979. Both statutes were enacted to regulate the relationship between landlord and tenant, are distinguishable and cannot be applied to the present circumstances of the case where a notice is required to be given to a statutory authority. The case of Syed Monawat A.I v. Tariq 1993 CLC 349 cited by the learned counsel is irrelevant as it relates to section 12 of the Specific Relief Act.
16. It is pertinent to note that in the application under Order XXXIX, Rule 2, C.P.C. (C.M.A. 6023 of 1997)
17. K.B.C.A. Had clearly stated that no construction at site was in progress at the time the suit was filed and in support had also attached photographs of the site showing excavation work--going on in preparation for laying the foundation of the building. The plaintiff filed a counter-affidavit against the said application but did not anywhere contradict or refute the said statement of fact or that the photographs filed by K.B.C.A. Were not of the property in question showing its condition as alleged.
18. Mr. Malik, learned counsel for the plaintiff, in his argument stated that no show-cause notice had been issued by K.B.C.A.; however, he added that the officers of K.B.C.A. Had visited the site and threatened to pull down the construction. I fail to understand how K.B.C.A. Officers could pull down or demolish any construction when only digging of the site for laying the foundation was in progress and no tangible construction was in existence. The plaintiff not having denied or challenged the photographs filed by K.B.C.A. It is, prima facie, evident that the allegations made by the plaintiff in the plaint that the officers of the K.B.C.A. Threatened to demolish and seal the premises are incorrect and cannot be believed. It appears that the plaintiff made these false allegations in the plaint in order to fabricate a cause of action for filing the suit with the ulterior motive to carry out illegal construction under the umbrella of an ad interim injunction which is a common practice followed by builders in Karachi which I have noticed from innumerable suits that have come up for hearing before me. I have no doubt in my mind that the plaintiff has come to this Court with unclean hands and had no cause of action against K.B.C.A. And the plaint is liable to be rejected on this ground also.
19. As a result of rejection of the plaint, the application under Order XXXIX, Rule 2(3) (C.M.A. 5616 of 1997) filed by the plaintiff has become infructuous and is dismissed as such.
20. At this stage it is pertinent to mention than in their application under Order XXXIX, Rule 4, C.P.C. Tiled on 17-9-1997 K.B.C.A. Had asserted in para. 4 of the application that the Administrator of K.M.C. As Chief Executive of K.B.C.A. In his letter dated 16-12-1993 had objected to the plan submitted by Dr. Naseer A. Shaikh because the plot had been granted to the latter for purpose of running a hospital and had declined to change its use as a hospital-cum-commercial-cum-residential building.
21. Further, on 1-4-1998 the Interim Order was modified and K.B.C.A. Had been granted permission to ensure that the construction was strictly in accordance with the law and within the four corners of the Building Control Rules and Regulations. Accordingly, K.B.C.A. Is directed to submit a report within two months about the action taken by them in respect of the said plot and the construction thereon. Further, as change of the use of the plot has apparently been allowed by K.B.C.A., the Report shall also state the provision of law under which the change in use was sanctioned together with the name of the persons with designation who sanctioned the same.
22. Compliance Report to be submitted within two months.
23. To come up for consideration of the compliance report on 13 March, 2000 when K.B.C.A. Shall also produce the relevant file of the plot from the date of first allotment and all subsequent transfers including various applications for approval of construction plans thereon.