1. ' By this order I intend to dispose of C.M.As. Nos.2562 of 2000 and 2910 of 2000, filed by the plaintiffs and the defendants respectively.
2. ' The plaintiff through C.M.A. No,2562 of 2000 have prayed for suspension of the operation of Annexure G-1 and G-2 with the plaint on the ground that the same have caused great prejudices, irreparable loss and injuries to them. Annexure-G-1 is a letter dated 8-4-2000 of the Controller of Buildings communicating the withdrawal/cancellation of the approval of the plan for addition and alteration of the building, on Plot No,29 Pr-2, Preedy Quarters (hereinafter referred to as the Bambino Centre), whereas Annexure G-2 is a letter of eve date of Deputy Controller, Design-1, KBCA, communicating the cancellation of NOC issued in favour of the plaintiff for sale/advertisement of the project "Bambino Centre".
3. ' The application is supported by the affidavit wherein it has been averred that the acts of K.B.C.A.
4. To recall/cancel the approved plan for addition/alteration and withdrawal of NOC are mala fide, illegal, without lawful authority, violative of fundamental rights and principles of natural justice.
5. Such orders are liable to be suspended and struck down and that unless the prayers' as made in the application are granted, they shall be seriously prejudiced and shall suffer irreparable loss and injury. It was further averred that the plaintiffs have prima facie case and balance of convenience lies in their favour.
6. ' The second application (C.M.A. 2910 of 2000 under Order 7, rule 11, C.P.C. Read with section 151, C.P.C. Has been filed by the defendants with prayer for dismissal of the suit on the ground that the suit is not maintainable for the reasons--
(a) that no notice under section 20-A as envisaged in the Sindh Buildings Control Ordinance, 1979 hereinafter called the Ordinance) has been submitted to the defendant No,2; and
(b) that the plaintiff having contravened the mandatory requirement of the Ordinance and Karachi Town Planning and Buildings Regulations, 1979, as manifest from the plaint itself the suit is not maintainable.
7. ' The application is supported by affidavit of Khawaja Moeenuddin, Deputy Controller of Buildings (defendant No,2).
8. ' The facts relevant for the purpose of disposal of the present applications are that the plaintiffs are owner of the building known as Bambino Cinema constructed on Plot 29, PR-2, Preedy Quarters, Karachi housing two cinemas namely "Bambino Cinema" and "Scala Cinema", which are being run by the plaintiffs, who are engaged in the business of public exhibited of films/movies since its construction. Apart from the aforesaid Cinema, 60 office premises are in the same building under occupation of Architects, Lawyers, Medical Practitioners. It is case of the plaintiffs that the decade of 1980's had witnessed tremendous downfall in the Pakistan Film Industry due to the projection of videos and electronic media. The city of Karachi had witnessed closure of several cinema houses during the last 20 years. To name few Palace Cinema, Khyayyam Cinema, Majestic, Picture House, Light House, Naz Cinema, Liberty, Paradise Cinema and Relax Cinema. All these cinema houses were replaced by commercial buildings. The "Naz Cinema", which was in close vicinity of Bambino, was demolished in recent past and there now stands a commercial building with the name of "Naz Plaza" having 12 stories with the entire plot having been covered leaving no open space. The case of the plaintiff is that the seating capacity of Bambino Cinema is 997 and in the present economic conditions, it is very rare to get a full house for shows except during Eid Holidays, when the Board "House Full" comes into use by the management. Besides this, in western countries as well as in India and the U.A.E., the film exhibitors are preferring to establish compact/small theatres with upto date facilities, the same is being done to keep pace with the rapid progress in the audio visual technologies. For the aforesaid reason, the plaintiff decided to covert the traditional cinema house into a digital theatre with computerized vision and sound system. To achieve this goal, it was necessary that the seating capacity and inside area of the cinema house should be reduced, which facilitate the installation of digital system and will also reduce the costs of all other necessary equipment. To achieve the above object, the plaintiff in collaboration with M/s. Quality Builders Ltd., decided to carry out work of alterations and modification in the existing building plan of the Bambino. In the month of January, 1999, the plaintiff applied to the defendant No,2 seeking alterations and modifications in the approved building plan and accordingly deposited security fee. The plan was returned with six objections on 3-2-1999 by the defendant No,2. All the objections raised by the defendant No,2 were duly complied with and the addition/alteration plan was re- submitted Which underwent all legal and technical scrutiny required for approval of the proposed building plan. The Deputy Controller of Buildings (Environment Utilities), K.B.C.A., extended no objection certificate for the plan submitted by the plaintiff. All necessary fees and charges were duly paid by the plaintiffs. After thorough scrutiny, the defendant No,2 on 16-3-2000, issued approved plan to the plaintiff. Thereafter, plaintiff also approached K.B.C.A. For issuance of NOC for sale and advertisement of shops in the proposed project "Bambino Centre", which was also issued on 22-3-2000 after completion of all legal formalities. After obtaining approval of the plan and NOC the plaintiff started extensive publicity for booking of shops on the ground/mezzanine floor in the Bambino Centre strictly in accordance with the NOC issued by the K.B.C.A.
9. ' It is the case of the plaintiff that according to the approved plan, some 119 shops are to be constructed on the ground/mezzanine floors reducing the capacity of Bambino Cinema up to first floor. It was absolutely impossible for the plaintiffs or any other builder to demolish the entire cinema and to reconstruct a shopping plaza thereon, as Chambers are already under occupation of several tenants, who are still enjoying physical possession of their respective tenements. One of the purposes of constructing shops on the grounds/mezzanine floors is to Keep Bambino Cinema intact, as well as, the vested tenancy rights of third parties, and to introduce digital system therein.
10. At the same time, the plaintiff wants to utilize the vacant part of Bambino Cinema, which will be available to the plaintiff after reshaping of the two Cinemas namely Bambino and Scala. An impression is being created maliciously by jealous competitors that a new project has been introduced in place of Bambino Cinema, which in fact is absolutely incorrect and baseless. The plaintiff has not applied for demolition of the existing structure as would have been required by the Building Regulations in case of demolition and erection of a fresh building. Plaintiffs by their conduct have never attempted nor intended to violate the approved plan or the NOC.
11. ' Further case of the plaintiff is that on 30-4-2000, the defendant No,2 on the instigation of some of the officers of the defendant No,1, issued a show-cause notice threatening to withdraw NOC/approval for additions/alterations plan on frivolous ground, though the objections raised by the K.B.C.A. Were neither relevant nor material for the plan approved. On 6-4-2000 plaintiffs have replied the same. The plaintiffs were awaiting for the opportunity of personal hearing in case any further clarification is needed by the K.B.C.A. But on 9th April, 2000 (Sunday) the plaintiff received two letters from the K.B.C.A. Intimating withdrawal/cancellation of approved plan and cancellation of N.O.C. For sale/advertisement of the project on the ground that the approval/N.O.C. Were obtained on misrepresentation/concealing the facts, though no allegations constituting 4.
12. Misrepresentation or concealment was particularized or attributed towards the plaintiffs, in the show-cause notice (Annexure F-1). No opportunity of personal hearing was afforded to plaintiffs in order to explain so-called misrepresentation or concealment. The act of cancellation/withdrawal of the approved plan for additions and alterations as well as cancellation of N.O.C. For sale/advertisements of the project, according to the plaintiff, are based on mala tide and without lawful authority. Such orders passed by the K.B.C.A. Under pressure from officials of the defendant No,1 are violative of the fundamental rights, as well as, violative of the principle of natural justice.
13. According to the plaintiff, after receipt of approved plan and N.O.C. Several advertisements were published in the leading newspapers/periodicals of the country and in the consequence thereof more than 80% shops were booked by the several allottees. The plaintiffs have suffered great humiliation, embarrassm ent amongst the traders community at the same time have also suffered irreparable loss and injury for the unauthorized and illegal acts of the defendants, The plaintiffs claimed that they are entitled in the law to improve their property in order to achieve maximum monetary benefit by constructing shops as approved by the K.B.C.A. And its denial in any manner amounts to violation of the fundamental rights of the plaintiffs and its directors on account of booking of the shops vested right in favour of the said persons imposes an accrued liability on the plaintiffs to discharge their contractual obligations, breach whereof would be actionable by the third parties. The quantum and measurement of those damages cannot be estimated in monitory terms, the damages being unliquidated and the plaintiffs would be put to irreparable harm. There was no allegation in the show-cause notice that the approved N.O.Cs. Transgressed the limits imposed by any of the building bye-laws or the parent statutes, namely the Sindh Buildings Control Ordinance, 1979. Thus, the defendant No,2 is estopped from cancelling the N.O.Cs. And approved plan and cannot impair vested rights of the plaintiffs on the principle of promissory estoppels.
14. There was no allegation of irregularities or impropriety of the plans and N.O.Cs. Being beyond the building regulations. Defendant No,2 has lost the locus poenitentiae to recall the approved building plan and N.O.C. In absence of any violation of their terms.
15. ' On above facts, the suit with following prayer has been filed:-- "(a) declare that the vested rights acquired by the plaintiff by acting upon the approved building plan and the N.O.Cs. For advertisement and sale granted by the defendant No,2 cannot be impaired, the moreso to take retrospective effect;
(b) declare that the approved building plan entitling the plaintiff to alter, modify and give a new shape to the existing structure is not in law a building plan for fresh construction and that the plaintiffs are constitutionally entitled to improve their property namely Bambino Cinema/Centre without let or hindrance on the part of the defendants;
(c) declare that the cancellation/withdrawal letters, dated 8th April, 2000, issued by the defendant No,2 are mala fide, illegal, without lawful authority and void ab initio;
(d) permanently restrain the defendants from action on the withdrawal/cancellation notice, dated 8th April, 2002;
(e) restrain the defendants and their agents, employees, attorneys, representatives and/or other person acting under their instructions or guidance from interfering in the lawful construction being raised on the suit property and may be further restrained the defendants from acting upon the above mentioned cancellation/withdrawal orders;
(t) mandatory injunction directing the defendants particularly. K.B.C.A. To restore the approved building plan for alterations/additions in respect of the Bambino Centre/Cinema and the N.O.C.
16. Issued by the K.B.C.A. For advertisement of the project;
(g) cost of the suit;"
17. ' In opposition to the plaintiffs application for mandatory injunction, Khawaja Moinuddin, Deputy Controller of Buildings has filed his affidavit, wherein the contents of paras. 5, 6 and 7 of the plaint were admitted to the extent that the plaintiff submitted the plan to defendant No,2 to seek alteration of certain portion of Bambino Cinema and deposited scrutiny fee. The plan was approved as per Annexures D-1, D-2 and D-3, which was confined to the portion indicated in yellow.
18. Issuance of N.O.C. Was admitted. The approval for construction of 119 shops and Bambino Centre shown in the approved plan was also approved. It was maintained that there was no requirement under the law for personal hearing. The plaintiff's representation was considered and the same was rejected as stated in Annexures G-1 and G-2 which were issued to the plaintiff.
19. ' With the permission of the Court, the defendant No,1 was allowed to file counter-affidavit to the injunction application and in pursuance thereof affidavit of Muhammad Younus Jaffer, Secretary of the Housing and Town Planning of defendant No,1 was filed stating therein the grounds and reasons for cancellation/withdrawal of the approval and N.O.C., while issuance of notice dated 2- 4-2000 in DAWN. It is maintained that the Government of Sindh, by exercising the power under section 6(5) of the Sindh Buildings Control Ordinance, 1979, the approval has been cancelled, which empowers the Government that before the completion .Of the building, Government may, if it is satisfied that construction of any type of building or buildings in any area, if not in the public interest or is otherwise inexpedient, notwithstanding anything contained in the Ordinance, rules and regulations made thereunder and without notice cancel or suspend the certificate. It was reiterated that since a number of violations had been overlooked/ignored by K.B.C.A.s'. Officers, these omissions were going to cause serious consequences if the said approved plan was implemented.
20. ' The violations are as follows:--
(a) The sub-station provided on the mezzanine floor 14 x 27-1/2 is against the Building Regulation, which requires sub-station to be at the ground floor level on a 20 feet access road/space, that provisions of incoming/outgoing 11KV cables and low-voltage cables in the form of trenches and raceways from the ground floor, oil sump below the transformer, for drainage of flammable oil in case of rupture of the transformer tank, proper ventilation for the equipment heat in the substation, access for the K.E.S.C. To install and service equipment.
(b) The proposed plans were not forwarded by the lessor, Sindh Board of Revenue.
(c) The access to parking lot is not shown in the approved plan.
(d) An irregular/illegal half-floor has been constructed at the sixth floor level at some time in the past, was not part of the original approved plans, which has increased the load on the original structure.
(e) The loading/unloading spaces for vehicles have not been provided in the plan on the ground floor in terms of Schedule G, Part 4, Article 3 of Regulation, Part II, whereby five loading/unloading spaces of dimension 16-1/2 x 33 each have to be provided so that the public road is not blocked/encroached upon by commercial loading/unloading activities.
(f) The K.B.C.A. Has approved plans without structural drawings/N.O.C. For the new six level (ground, upper part, mezzanine/mid, first, second, third building structure (approximately 50' x 80' per level) to be constructed in the existing parking lot, and for the two (mezzanine and first) new structural floor slabs within the cinema auditorium space, as required by Regulations, Part-I, Chapter 2, Articles 9 and 10.
(g) The change of cinema auditorium on ground and mezzanine levels and re-planning the same with shops is not properly and clearly shown and described in the drawings.
(h) The section of the building shown in the approved plans seems to be technically incorrect and does not co-relate to the plans of the floors.
(i) The Cinema Auditorium is allowed on ground floor or first floor only in terms of Part 7 of Schedule G of the Regulation.
(j) Parking space requirement has not been calculated/assessed properly. The provisions of only 32 cars has been assessed without taking into account the special car parking requirements for the various types of commercial usage, as provided in Article 4, Schedule G, Part 4 of the Regulation.
(k) The lease deed and restrictive covenants/conditions has not submitted as required by Article II of Chapter 2, Regulations, Part-1.
(10) The new to be constructed covered area has been under calculated.
(m) Two new floor slabs within the cinema auditorium and the new. Other half of the 6th floor have not been included in the new built up area thus reducing the Government fees charged for scrutiny/approval and the withholding taxes paid to the exchequer.
(n) 7-1/2 compulsory open space at the rear of the new construction in the parking lot has not been provided in the approved plans.
(o) The coloured sales brochure and the media advertisements show and curved projection on the upper floors in the .Centre of the building, which has not been approved in the plans. This projection will overhang the public road in contravention of Article 6(7) (3a) of Schedule G, Part 2, Regulation, 1979.
21. ' Rejoinder affidavit was filed by one of the Directors of the plaintiff-company in denial of all the averments and allegations. It was maintained that the person who has sworn the counter-affidavit is not aware of the real facts and has filed the same on the dictation of people having vested interest. It was maintained that no order under section 6(5) of the Sindh Buildings Control Ordinance has been passed by the defendant No,1 and the order of withdrawal of cancellation of the approved plan and cancellation of N.O.C. Or order passed by the K.B.C.A. Establishes under section 4 of the Ordinance. This order cannot be treated to be the order passed by the Government of Sindh, which is violative of the principle of natural justice and law. Annexures G-1 and G-2 do not reflect and establish that in any manner it was passed either in the public interest or it was found inexpedient. It has not been signed and issued by any of the functionaries in the hierarchy of defendant No,
1. It was also maintained that K.B.C.A. Has not committed violation or ignored the Town Planning Regulations. It was maintained that the objections/allegations have been raised maliciously in order to fill in the lacuna in the defendant's case. None of these objections was ever raised at the time of issuance of show-cause notice and all these facts and circumstances prove mala fide in law. It was further maintained that the plans for additions and alterations submitted by the plaintiff and duly approved by the defendant was in respect of ground plus mezzanine floor and no manner any attempt is made by the plaintiff or regularize the 6th floor. 6th floor was constructed much prior to the year 1979. It was maintained that the provisions of Schedule G, Part II are discretionary and not mandatory. These Regulations are to be applied according to different social and economic conditions and keeping in view the area standards as referred in Schedule H of Part II, which are applicable only when new building has been constructed on an open plot and not in the case of additions and alterations. It was maintained that to provide loading/unloading area is required in the cases of industrial concern, manufacturing units and wholesale warehouses and not in a project like that of the plaintiff. Defendant, who has approved several building plans without such requirement it was never objected by the Government, which reflects mala fide and on their part. They have also denied for submission of approval plan consisting of 6 levels. They maintained that as per approved plan car parking space for 42 vehicles which was calculated on the basis of regulations in the following manner:-- ' For every 20 seats of cinema, parking space for one car is essential. The proposed seating capacity consists of 349 seats, which require 18 cars. In case of retailer business place for every 2,690 s.Ft. Covered area, parking of one car is required under the law. The covered area is 35,225 s.Ft. Which requires parking area of 14 cars. Office space is 52083 s.Ft. And according to Regulation every 5,380 s.Ft. Covered area needs one car. In the approved plan the area for this section is measured at 52,083 s.Ft. Which is for 10 cars. According to them parking space in all for 42 cars is mandatory and the same has been provided in the approved plan. It was maintained that restrictive covenent of lease deed is a matter between lessor and lessee and that in no manner K.B.C.A. Is competent to raise these objections. It was maintained that lease of the plot was executed in 1927 and the lessor is not competent to alter the terms of the lease. However, there is no ground for recalling or withdrawing the approved building plan. They have also denied that in any manner there was any attempt on the part of the plaintiff to reduce the scrutiny/approval fee or to withhold payment of any tax. The required compulsory open space is only possible if the entire construction which comprises six storeys is demolished and a new building is proposed to be constructed thereon. Since the plaintiff have obtained permission for the additions and alterations, the question of leaving compulsory open space is absolutely irrelevant. They maintained that at the back of the building there is already a Ramp which leads to parking lot and which comprises of 16 feet. In order to leave COS the entire structure of Bambino Cinema has to be demolished.
22. ' During the arguments, a statement on behalf of the plaintiff was filed on 26-5-2000 without prejudice to the contents of the plaint and counter-affidavit and rejoinder filed by the defendant in order to shorten the controversy and protect the right of some 80 allottees in the Bambino Centre, in the following terms for disposal of the injunction application:-- "(a) That the K.E.S.C. Substation shall be situated on the ground floor facing the main road (Garden.
23. Road) and for that purpose a shop measuring 24.6 feet x 27.5 feet shall be reserved.
(b) That compulsory open space requirement shall be met by leaving.
24. 7.5 feet open space in the area comprising of the parking zone in the old plan (current building).
(c) That the entrance of the Bambino Cinema shall be located at the first floor with ground and mezzanine floors underneath the entrance gate, while the auditorium will be shaped in a manner declining towards the screen as per sanction plan.
(d) That the Scala Cinema will not be shifted to the third floor and will be maintained at the present place, second floor.
25. ' The structure design of the building to be constructed in pursuance of the plan as modified shall be considered and decided by the K.B.C.A. Within 30 days of its submission by the plaintiff.
26. ' That the plaintiff shall pay such security amounts or governmental dues or fees as it may be liable for in the consequence of the modification and approvals.
27. ' I have heard the learned counsel for the plaintiff and the defendants.
28. ' First I propose to dispose of the application for rejection of the plaint under Order 7, rule 11, C.P.C.
29. ' The provisions of section 20-A of the Ordinance is reproduced for proper appreciation of the contentions raised by the learned counsel as under:-- "20A. No suit shall be filed against the authority or any of its employee in respect of anything done or purported to be done by the Authority or such employee under this Ordinance except after expiration of 60 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."
30. ' Learned counsel for the defendants contended that the Government has power to withdraw the approval granted , under subsection (1) of section 6 without notice and Government by exercising such power under subsection (5) of section 6 has cancelled the plan and N.O.C. In the public interest, as the same was inexpedient in absence of any service of notice and the suit itself is not maintainable and has placed reliance on for Square Enterprises v. Karachi Buildings Control Authority (PLD 2000 Karachi 161), wherein the learned Single Bench rejected the plaint by observing that the wording of section 20A of the Ordinance are in essence similar to the wording of unamended section 80, C.P.C., section 273(i) of the Cantonments Act, 1924 and Article 131(1) of K.D.A.
31. Order, 1957. In view of the various judgments reproduced above, it cannot 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."
32. ' Learned counsel for the plaintiffs has vehemently opposed the application and contended that proper assistance was not provided to the learned Bench and maintained that consistent view of this Court is that the plea of bar is not available unless the act impugned was within the four corners of the statute. He further contended that from the various statutes, two types of bar can be spelled out, (i) absolute bar and (ii) conditional bar. The Statutes, containing absolute bar, are such as (i) Colonization of Government Lands Act, 1912 (section 36), (ii) Displacement Land Settlement Act, 1958 (repealed) (sections 22 and 25), (iii) Customs Act, 1969 (section 217), (iv) Income Tax Ordinance, 1979 (section 160) and (v) Frontier Crimes Regulation.
33. ' The Statutes containing conditional bar are (i) unamended section 80, C.P.C., (ii) Cantonments Act, 1924 (iii) Cooperative Housing Societies Act (section 70-A) (iv) Article 131 of K.D.A. Order, 1957 and (v) section 20A of Sindh Buildings Control Ordinance.
34. ' Learned counsel for the plaintiff contended that the present case is of conditional bar and the bar would come into play if the impugned order passed by the Authority is within the four corners of law, otherwise, the bar would not come in the way of a party filing the suit. He further contended that even in absolute bar, Civil Court being the Court of ultimate jurisdiction and where the mala fide has been attributed the absolute bar cannot be pleaded. He referred cases of (i) Abdul Rauf v.
35. Abdul Hamid Khan and others (PLD 1965 SC 671) wherein it was held that question as to whether the act of executive or administrative officer, or quasi-judicial or of judicial tribunal is without jurisdiction and illegal and not binding on the party is a matter of civil nature and is always be decided by the Civil Court except to the extent to which the jurisdiction may have been taken away,
(ii) Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (PLD 1965 SC 698), wherein it was observed that "So far as special judicial tribunals are concerned they are given jurisdiction to determine certain facts but they are not Judges of the facts which are the foundation of their jurisdiction nor can they define the limits of their own jurisdiction. It is possible, of course, that Special Tribunal may be made the judge of its own jurisdiction, but this would be a very exceptional provision and one which should be made by altogether clear words. However, with respect to mala fides, the jurisdiction of the Civil Court can never be taken away for a mala fide act is in its very nature an illegal and void act and the Civil Court can always pronounce an act to be mala fide and therefore, void", (iii) Usman Punjwani v. Government of Sindh (1996 CLC 311), wherein the learned Single Bench while considering the question ouster of jurisdiction under the provisions of section 36 of the Colonization of Government Lands Act, 1912 observed as under:-- "On the question whether this Court has jurisdiction, the law is well-settled. It has been held in several reported cases that despite provisions of section 36 of the Colonization of Government Lands (Sindh) Act, 1912, the Civil Courts have jurisdiction to entertain a suit, if the order passed by the Revenue Authorities is bad in law, without lawful authority and mala fide."
36. ' So far as the case of conditional bar, the learned counsel for the plaintiff has referred (i)
37. Muhammad Amin v. Karachi Buildings Control Authority (1992 CLC 691), wherein similar objection was raised about the maintainability of the suit for want of notice under section 20A of the Ordinance and it was held that section 20A will be attracted only in respect of anything done or purported to be done by the Buildings Control Authority or its employee within the four corners of the said Ordinance and not otherwise and so also it will not be attracted where any act is done with mala fide intention or in colourable exercise of the Authority vested, (ii) Asma Builders v.
38. Government of Sindh (1992 CLC 729), wherein a similar contention was raised that the suit is not maintainable as prior notice has not been served under section 20A of the Ordinance. The contention raised was repelled with the following observations:-- "The abovesaid provision provides that notice is necessary requirement in case of filing of suit to challenge anything done or purported to have been done by the Authority or its employee under the Ordinance.. In order to appreciate this provision it would be necessary for the said defendant to show that the action of their, which is being challenged in the suit is an action under the Ordinance.
39. As I have already said the act of the defendant No,2 is in violation of the authority vested in him said act cannot be said to be the act done under the Ordinance. No order can be said to be an order passed under the Ordinance or any statute if it was not passed in exercise of power granted by the said statute and, therefore, was without jurisdiction."
40. ' Similar view was expressed by learned Single Bench in Khuda Bux Chandio v. Sattar (1999 MLD 3199), wherein the order passed by the learned Senior Civil Judge dismissing the application under Order 7, rule 11, C.P.C. Filed by the applicant, pleading the bar of the suit for want of notice was examined in revisional jurisdiction of this Court, while dismissing the revision application it was observed that every statutory body or, public functionary was supposed to function in good faith honestly and within precincts, of its powers so that person concerned should be treated in accordance with law as guaranteed by Article 4 of Constitution of Pakistan. A departure from this grund norm will render actions destitute of validity and will resultantly strip off the cloak of protection provided to it under the law.
41. ' Learned counsel for the plaintiff has referred the plaint and maintained that the action of the defendant has been challenged on the grounds of mala fide and violation of principle of natural justice. He contended that, the plaint cannot be rejected without opportunity to the plaintiff to prove these facts at the trial. He further urged that for the purpose of rejection of the plaint, the allegations made in the plaint are to be accepted as correct though the plaintiff may not ultimately succeed in establishing the allegations in the plaint. He referred the observation in case of Hakim Bashir Ahmed v. Government of Sindh (1984 CLC 3061), which reads as under:-- "It is well-settled that in order to reject the plaint under Order 7, rule 11, C.P.C. The plaint must be showing to be barred under some law on the basis of averments made in the plaint. The Court at this stage is neither entitled to look into the plea raised or nor can examine the merits of the allegations made in the plaint. Every allegation made in the plaint has to be accepted to be correct while rejecting the plaint under Order VII, rule 11, C.P.C. The fact that the plaintiff may not ultimately succeed in establishing the allegation made by the plaintiff in the plaint cannot be a ground for rejecting a plaint under Order VII, rule 11, C.P.C."
42. It is well-settled that ouster of the jurisdiction can be claimed when impugned order/action is found to be within the four corners of the statute under which it is passed or taken. It is consistent view of the superior Court that the provisions contained in Statute ousting the Court of general jurisdiction is to be construed very strictly and unless case falls within the letter and spirit of the barring provisions it would not be given effect to. On this point observation of Supreme Court in Abbasi Cooperative Bank v. Hakeem Hafiz Muhammad Ghaus (PLD 1997 SC 3), with advantage can be reproduced as follows:-- "It is well-settled law that where the jurisdiction of the Civil Court to examine the validity of an action or an order of executive authority or a special tribunal is challenged on the ground of ouster of jurisdiction of the Civil Court, it must be shown (a) that the authority or the tribunal was validly constituted under the Act; (b) that the order passed or the action taken by the authority or tribunal was not mala fide; (c) that the order passed or action taken was such which could be passed or taken under the law which conferred exclusive jurisdiction on the authority or tribunal, and (d) that in passing the order or taking the action, the principles of natural justice were not violated. Unless all the conditions mentioned above are satisfied, the order or action of the authority or the tribunal would not be immune from being challenged before a Civil Court. As a necessary corollary, it follows that where the authority or the tribunal acts in violation of the provisions of the statutes which conferred jurisdiction on it or the action or order is in excess or lack of jurisdiction or mala fide or passed in violation of the principles of natural justice, such an order could be challenged before the Civil Court in spite of a provision in the statute barring the jurisdiction of Civil Court."
43. ' The case in hand is to be examined in the light of the above observations.
44. ' It is case of the plaintiff that the show-cause notice issued on 3-4-2000 (F.1) contains objections which, according to the plaintiff, were complied with. Public notice issued in daily Jang contains different grounds (i) Bambino Cinema is being closed. The project in the name and style of Bambino Centre coming up on the site, (ii) K.B.C.A. Has neither granted permission for closure of Bambino Cinema nor demolition of the same, (iii) permission to shift or parking facility from the ground to first and second floor granted by the K.B.C.A. Is also being investigated, as apparently this has been given in contravention of the existing laws and regulations, whereas in the withdrawal/cancellation notice (G-1) the ground for cancellation has been mentioned. That the approval was obtained on misrepresentation/concealing the facts and lastly in counter-affidavit numerous allegations were attributed that approval of the plan by the K.B.C.A. Employees was in violation of Building Regulations.
45. ' The cancellations (G-1 and 2) communicated to the plaintiff have been challenged on the ground of mala fide without jurisdiction and violation of principle of natural justice as well as right guaranteed under the Constitution of Pakistan. Therefore, the ouster of jurisdiction of Civil Court under absolute or conditional bar would not be available, where the order or action of the authority in cases where such authority acts in violation of the provisions of the statute which conferred the jurisdiction on it or the action or order is passed in violation of principles of natural justice or such order has been impugned on the ground of mala fide, such an order could be challenged before the Civil Court in spite of a provisions in the statute containing the conditional bar, to examine whether the impugned order passed by authority suffers from any such defect. I am, therefore, of the view that plaint cannot be rejected. Resultantly, the C.M.A. No,2910 of 2000 filed by the defendant is dismissed. However, with no order as to costs.
46. ' This brings me to the application (C.M.A. 256Z of 2000) filed by the plaintiff for suspension of the withdrawal/cancellation order communicated to the plaintiff through Annexures G-1 and G-2.
47. A party approaching the Court for injunction has to establish (i) a prima facie case, (ii) balance of convenience and (iii) irreparable loss, if injunction is refused. In case of Sui Gas Transmission Co. v.
48. Sui Gas Employees' Union (1977 SCMR 220), Supreme Court has very succinctly expressed that prima facie case would be spelt out if a serious question of law or fact have been raised in the plaint on which the parties have to go to the trial. This view was followed by learned Division Bench of this Court in case Muhammad Matin v. Mrs. Dino Manekji Chinoy (PLD 1983 Karachi 387) and it was observed that in such enquiry, the object of the defendant even as to maintainability of the suit will not be a proper criterion by following the view expressed in case of S.N. Gupta v. Sadanand Gosh (PLD 1960 Dacca 153).
49. ' Learned counsel for the plaintiff has maintained that action of the defendant K.B.C.A. By withdrawal/cancellation of approved plan without due notice to the plaintiffs and without giving them opportunity of hearing violates the principles of natural justice. He further contended that the defendants have taken refuge under the provisions of subsection (5) of section 6 of the Ordinance and have also taken the plea that the Government has power to cancel the approval without due notice. Mr. Razvi, learned counsel for plaintiff referred the case of Commissioner of Income Tax v.
50. Fazlur Rehman (PLD 1964 SC 410), wherein the following observations were made by superior Court:- "We do not think the mere absence of a provision as to notice can override the principle of natural justice that an order affecting the right of a party cannot be passed without an opportunity of hearing to that party."
51. ' Learned counsel for the plaintiff has also challenge the authority of Controller of Building to cancel the approved plan and maintained that once the approval is granted, it cannot be withdrawn. The course open to K.B.C.A. Was to resort the provisions of section 7-A in case of violation of the provisions of subsection (1) of section 6 and maintained that expression "any other action" used in subsection (7-A) was examined by the Division Bench of this Court in case of Messrs Asma Builders v. Government of Sindh (1993 CLC 326). Contention of K.B.C.A. Was that the use of words "without prejudice to any other action under section 76 clearly indicates that the Legislature intended to vest the authority with larger power than what has been specifically provided in the said section.
52. This was repelled by learned Bench in the following:--"We are unable to subscribe to this view because if the intention was to confer more powers than what has been clearly expressed in the said section, nothing prevented the Legislature from being more explicit in this regard. Apparently the other action contemplated by the said section would, therefore, include only such other action which may be incidental or necessary to what has been specifically provided in the said section. In any case, since Mr. Kazilbash has not been able to invite our attention to any provisions in the said Ordinance or the rules and regulations made thereunder to show that the said Authority was empowered to cancel the approved plan for the reasons stated in the notice of its Deputy Controller of Buildings, dated 2-11-1986, we are of the view that the action taken by respondent No,4 against the petitioners is unwarranted by law. If any deviation is made by a builder from the building plan approved by the authority, the same would entail action as specifically provided by section 7-A of the said Ordinance which may include demolition of the unauthorised structure by the said authority, but the approval granted to the building plan cannot be cancelled".
53. ' Learned counsel for the defendants has with emphasis contended that impugned order is by the Government under the powers of subsection (5) of section 6 of the Ordinance in the public interest.
54. The perusal of the order itself shows that it was passed by the Controller of Buildings and not by the Government. Secondly, cancellation in public interest is not a ground itself, as evident from the bare of perusal of the order. Lastly the Government and the Authority are not interchangeable, both having been separately defined in the Ordinance itself.
55. ' On the above premises, learned counsel for the plaintiff contended that the stand taken by the defendants in the public notice, show-cause notice, cancellation order as well as in the counter- affidavit to the application are at variance and at every stage new grounds were introduced. He further contended that the Authority under the provisions of section 7-A of the Ordinance, can take only those actions provided in the section in case of violation, but cannot cancel the same and it is highly doubtful if the impugned order in any case can be termed to be an order of the Government under the provisions of subsection (5) of section 6 of the Ordinance as maintained by the defendant. It has also been contended by him that the plaintiffs being owners of Bambino Cinema have every right to improve the utility of their building and the defendants cannot restrain the plaintiffs except permitted under the law and if the plaintiffs are stopped from proving the utility of their buildings, they would suffer irreparable loss as third party interest has already been created by booking of 80% shops. He further contended that operation of the impugned order by mandatory injunction can be suspended and he referred case of S.A. Abbasi v. Chairman, District Coucnil, Gulshan-e-Iqbal (PLD 1985 Karachi 400), wherein it was held that "in exceptional cases injunction in mandatory form could be granted at interim stage but no doubt such grant is to be made rarely depending upon the nature of the case and subject to the circumstances of each case. But care has to be taken if the plaintiff ultimately fails in the suit he does not get any advantage of permanent nature of mandatory injunction at the interim stage. As in case of prohibitory injunction would be granted only when he makes out a prima facie case and also shows that balance of convenience is in his favour and he will suffer irreparable loss and injury and not otherwise".
56. ' Learned counsel for the plaintiff has stated at the bar that the plaintiff will not shift the Power Substation as well as Scalia from the present site. He has also produced the sanction in respect of the half portion of sixth floor, which was approved in the year 1966. The plan was approved vide K.M.C's. Letter No/AC/CE/113/66/88, dated 2-11-1966 and the Occupancy Certificate in respect of sixth floor was issued.
57. ' Learned counsel for the plaintiff contended that the regulations pointed out by defendant's counsel are not mandatory in nature, same are subject to modification in application in the light of the circumstances of each case.
58. ' Conversely, learned counsel for the defendants has opposed the injunction application. He maintained that the defendants are not bound by illegal acts of their servants. It has been maintained by him that approval was accorded in violation of the regulations by the officials of K.B.C.A., notice of which was taken by the Government and Government has cancelled the approval in public interest. He further contended that the Building Regulations have statutory force as ruled in case of Excell Builders v. Ardeshir Cowasjee (1999 SCMR 2089). He further pointed out the violation of the Regulation while approving the plan. He pointed out the objections taken in the counter-affidavit filed on behalf of the defendant No,1, with reference to the Regulation. He also urged that the injunction cannot be granted in view of the bar contained in section 56(d) of the Specific Relief Act.
59. With the assistance of the learned counsel for the parties I have examined the approval. The addition and alteration proposed by the plaintiff can be categorized in two portions (i) alteration and addition in the existing building, more particularly under the roof of auditorium of Bambino Cinema whereby the plaintiffs want to raise level of the Cinema floor to first floor and also want to reduce the area of auditorium by reducing the seating capacity. They want to utilize left over ground floor by raising shops on the ground floor and mezzanine floor and also want to utilize the space left over due to reduced area of auditorium by raising construction. They also proposed to use the open space by constructing shops and parking level.
60. ' The addition and alteration proposed to be made by the plaintiffs amount to construction, by virtue of the explanation to section 6 of the Ordinance, explaining the term "construct" as such the approval of the plan for addition and alteration has to be processed in terms of building regulation as provided in Chapter 2 of Karachi Building and Town Planning Regulations, Part 2, which requires submission of the application in prescribed form to the Authority through Licenced Architect with information and documents including the structural design.
61. ' First objection taken by the defendant was that the plan for proposed alteration and addition is to be routed through the lessor. Secondly, the ownership document has not been produced with grant. I have perused the Regulation. Routing of the plan through lessor is not a requirement under the regulation. The plaintiff had asked for time to produce the said but opportunity was not provided. Same has been produced by the plaintiff with the suit.
62. ' Third objection raised by the defendants is that the level of the Cinema floor has been raised to the first floor. Part 7(1) of Schedule G, clause (k) requires that auditorium shall only be located on the grounds or first floor. In my view the proposed level of Bambino Cinema on first floor is according to the Schedule G, Part 7, clause (k) of the Regulation.
63. ' Learned counsel for the plaintiff has already stated that the plaintiffs do not want to shift Scalia Cinema nor they will have any intention to change the site of the power substation from the ground floor to mezzanine floor.
64. ' Thus the main objections to the proposed construction are as follows:--
(i) That the parking space, and loading and unloading area has not been provided or it is not in accordance with the ratio prescribed under the Regulation No,II;
(ii) that structural design has not been submitted though the construction by way of addition and alteration involving columns, beams and linters for which the structural design is necessary;
(iii) that the plaintiffs, while getting approval, have avoided the payment of scrutiny fee and withholding tax by suppressing the area of constructions. Learned counsel for the plaintiffs has conceded that the plaintiffs are ready and willing to pay difference, if any, of scrutiny and withholding tax in accordance with law.
(iv) That the projection has been shown in the carved shape, which overhang the road, which was not approved.
65. ' It has been contended that the provisions of amenities have not been attended to as about 119 shops are to be constructed and no civic amenities have been provided including enhancement of power load and other civic facilities.
66. ' While opposing the injunction application, learned counsel for the defendant has given much emphasis that if the plaintiffs are allowed to raise the construction of project, it will create traffic congestion, which is already acute problem in the area.
67. ' I have considered the respective contentions.
68. Learned counsel for the plaintiffs has contended that since the plaintiffs have challenged the action of the defendant being mala fide, violates the principles of natural justice and without jurisdiction, the plaintiffs have made out a prima facie case as ruled in case of Muhammad Matin (supra) and they cannot be deprived of their right to improve their property but simultaneously they cannot be given a clear chit to go with the construction for the reasons that in case they fail to get the decree, it would be impossible to rectify by demolition of the construction, more particularly, involving third party interest as well. Therefore, by following the rule laid down in the case of S.A. Abbasi (supra) that care has to be taken that if the plaintiff ultimately fails in the suit, he does not get any advantage of permanent nature of mandatory injunction. Therefore, operation of the impugned order contained in Annexures G-1 and G-2 are hereby suspended subject to the following conditions:--
(i) That the plaintiffs shall re-submit revised plan for approval to the Karachi Building Control Authority through licensed Architect by--
(i) keeping KESC substation on the ground floor facing the main road;
(ii) leaving compulsory open space in ratio with the whole plot and not with the ratio of left over space;
(iii) scalla will not be shifted from its present site;
(iv) the plaintiffs shall pay difference of scrutiny charges/fee as well as withholding tax;
(v) the curved projection will not overhang the road;
(vi) the provisions of parking space as well as loading and unloading space would be provided in terms of the Regulations;
(vii) the plaintiffs shall also ensure of power load and civic facilities in respect of the proposed construction with facility of wash rooms; (viii)construction be supervised by a qualified Engineer. On submission of the plan for approval the defendants are directed to approve the plan within the period specified in the Regulation and if any objection still remains to be addressed, the plaintiffs be given full opportunity of being heard before any order is passed.
69. With the above observations, the application (C.M.A. No,2562 of 2000) filed by the plaintiff under Order 39, rules 1 and 2, C.P.C. Is granted. However, with no order as to costs.