1. ' The plaintiff, a builder and developer by profession acquired two residential Plots of land bearing Nos.44-A, measuring about 1000 sq. Yards and 44-B measuring about 1533 sq. Yds. In Block 6, P.E.C.H. Society. Plot No,44-A was purchased in the name of Nazzar Ali, Nizar All and Mehmood Ali, whereas, Plot No,44-B is owned by Shehzad Akbar, Shehvaz Akbar, Shahbaz Akbar and Mrs. Shehlina Akbar, who have appointed plaintiff as their General Attorney in respect of later plot. The owners of the plots approached defendant No,1 through defendant No,2 with a request of N.O.C. For amalgamation of the above plots, which was forwarded to defendant No,1 for scrutiny. The defendant No,1 issued no objection for amalgamation of aforesaid residential plots vide Letter No,PECHS/P.C.-19/96/449, dated 1-8-1996. The defendant No,3 vide their Letter No,F1(3770)/96-EVI, dated 27-9-1997 issued their no objection to the amalgamation of above residential plots by allotting new number to the amalgamated Plot as No,44-A, Block-6, P.E.C.H. Society, Karachi, measuring about 2533 sq. Yards. The defendant No,2 through their Letter No,PECHS/1380/632/97, dated 7-10-1997 confirmed the amalgamation of plots after making necessary entries in their official record. Both residential plots, therefore, stood amalgamated as one plot with one plot number as 44-A, Block-6, P.E.C.H.S., Karachi (hereinafter referred to as the suit property). It is the case of the plaintiff in order to build a commercial complex on the suit property, an application for commercialization of the suit property was made for conversion of plot from residential to commercial to defendant No,2, the same was forwarded to defendant No,1 for N.O.C., which was issued on 16-9-1997, subject to the approval by the defendant No,3, which was granted after completion of required formalities vide Letter No,F1(3770)96-EVI, dated 2-2-2000. The commercialization of the suit property was competently, legally, properly and validly approved by defendant No,3, which is the only competent Authority as it controls the lands situated with the area of Pakistan Employees Cooperative Housing Society, which position or fact is supported by the relevant record, even of defendant No,l. It is further case of the plaintiff that land control with regard to defendant No,2, Society falls within the jurisdiction of defendant No,3, .Whereas, the Building Control/Civic Amenities are - within the purview of Karachi Development Authority. The plaintiff submitted the building plan to defendant No,2 who forwarded the same to defendant No,l. The defendant No,1 granted approval of the building plan vide their Architectural approval conveyed to the plaintiff under their Letter No,KBCA/KDA/DCB-XXVII/Prop/222/97/1373, dated 25-11-1997. It is further the case of the plaintiff that defendant No,1 granted no objection for sales and advertisement of shops at the project Nice Trade Orbit on the suit property and the advertisement to be published in the Newspaper- vide their Letter No,KBCA/KDA/DCB(D11)/363/ADV-44/97, dated 11-12-1997. It is alleged by the plaintiff that since the permission to sell the offices/shops was granted, it could not have been granted, if the plans were not found proper and duly approved. The plaintiff thereafter, started booking and numerous shops and offices have been booked and now lot of public money is involved. On approval of the building plan, the plaintiff started construction of the building which comprises of ground plus 13 floors strictly in accordance with the approved plan and while construction was in progress, an inspection of the under construction project was carried out by defendant No,1, the plaintiff was directed to comply with the instruction. Contained in Letter No,KBCA/KDA/DCB-XXVII/99/653, dated 12-6-1999, which contains the following instructions:--
(i) To obtain revised Site plan as per the physical/actual dimensions of plot at SITE from the concerned Authorities.
(ii) To submit the amended/revised building plans accordingly.
(iii) To submit the structure soundness certificate from the licensed Structural Engineer regarding the change/increment in columns size as well as position of columns and structural drawing as per the present position shall be got vetted.
(iv) To remove the roof Projections at ground floor forthwith.
2. ' Apart from the above directions, the plaintiff was directed to stop construction work at site and steps were taken to fulfill the above requirements. Revised/amended building plans and structural soundness certificate were submitted before the defendant No,1 through defendant No,2. The leviable scrutiny fee was also deposited. However, due to stoppage of work the roof projection on ground floor could not be removed. Although in strict compliance of Rules and Regulation governing the Building Construction work, revised/amended approved plans were submitted before defendant No,1 but till date the permission to start construction work at site has not been conveyed to the plaintiff, when all the legal requirements have been complied with per se amounts to granting approval and it can, therefore, be safely assumed that in the light of Regulation 13 of Building Regulation Part 1, the Revised Site Plan, amended/revised building plans and structural soundness certificate stands approved and the plaintiff is within his lawful ,right to start construction as delay in grant of approval is causing huge financial loss. The plaintiff wrote a letter dated 1-3-2000 to the defendant No,1 treating it as notice in terms of Regulation 13(3) of Building Regulation Part 1. The defendant No,1 addressed a Letter to defendant No,2, bearing No,PECHS/P.C.S./19/96/161, dated 2-5-2000, intimating the withdrawal/cancellation of amalgamation of suit property, the substance of the letter is reproduced as follows:- ' Subject: Withdrawal/cancellation of amalgamation of Plot No,44-A, PECHS, KARACHI.
3. ' I am directed to convey that the proposal of amalgamation of Plots Nos.44-A and 44-B. Block 6, P.E.C.H.S. Was granted/obtained beyond the area restriction i,e, 800 sq. m. (as per Schedule D, Part II, Town Planning Regulation 1979-82), which was placed before the Oversee Committee in its meetings held on 15-11-1999 and 24-4-2000 and the Oversee Committee has decided to cancel the amalgamation of Plot Nos.44-A and 44-B (amalgamated Plot No,44-A) Block 6, P.E.C.H.S., Karachi issued vide Letter No,PECHS/P.C.S.-19/96/449, dated 1-8-1996 which ultimately will cancel the approval .Of building plan etc. (Sd.) Dy. Controller of Buildings (TP-II)
4. ' It is the case of the plaintiff that amalgamation approved is conclusive and final and defendant No,1 has no power and authority to dispute or deny or annul the same on the purported ground of Regulation 2 of Schedule D of Part H of Karachi Building and Town Planning Regulation on the following reasons:--
(i) The Regulation in question is beyond the scope and provisions of Sindh Buildings Control Ordinance, 1979 and consequently, ultra vires.
(ii) Alternatively, but without prejudice to the aforesaid submission and assuming that the Regulation is intra vires, it is submitted that the Regulation is directory in nature, and so the alleged noncompliance thereof cannot invalidate the amalgamation, more so, because the plaintiff having acted thereon, bona fide and in good faith, invested huge amounts in getting the amalgamated plot of land commercialized and by raising construction thereon in accordance with the building plan duly approved by defendant No,1. These events were overs and they were absolutely transparently occurred within the knowledge/notice of the officers concerned of defendant No,1 without any objection. The defendant No,1 is estopped from raising the untenable objection at the belated stage when the construction has already reached the third floor.
(iii) Alternatively, but without prejudice to what has been stated above, the control of all the lands, within the area of P.E.C.H. Society, is wish defendants Nos.2 and 3, the soliciting the NOC from defendant No,1 was confined to examining by defendant No,1 of the proposed amalgamation from the points of view of the schemes and it was so examined and cleared by defendant No,1. The defendant No,1 on such issuance of NOC, became functus officio, there being no complaint or allegation that the amalgamation is violative of any of the scheme/bye-laws/Layout plan nor any fact with regard to the two plots of land was suppressed by the plaintiff nor any misrepresentation has or can be alleged as the plaintiff had submitted all the relevant true papers relating thereof and so none has been alleged to the contrary. It was completely a transparent and bona fide exercise on the part of the, plaintiff.
(iv) Clause (ii) of the said Regulation 2. Has no nexus with the provisions of Sindh Buildings Control Ordinance; 1979. It is quite vague, purposeless and in any case, irrational and or unreasonable and legally unforceable.
(v) In any event, the alleged non-compliance of the aforesaid clause (ii) stood cured and condoned when before the submission of the building plan to defendant No,1, the commercialization of the amalgamated plot had already been approved by defendant No,3, which is the only competent Authority to give such approval.
5. ' It is the case of the plaintiff that commercialization of the suit property was competently, legally, properly and validly approved by defendant No,3 which is the only competent Authority as it controls the lands within the area of PECH Society. The defendant No,1 has no right and authority to question, dispute or deny the validity of the commercialization approved by defendant No,3. The rule 4 of Schedule "D" of Karachi Building and Town Planning Regulations (Part II) is ultra vices of Sindh Building Control Ordinance. 1979, and therefore, legally it is ineffective and inapplicable.
6. Approval of commercialization of the plot of land was accorded much before the submission of the building plan for the approval of defendant No,l. It was also alternatively pleaded that in case aforesaid Regulation is applicable to the case of the plaintiff, sufficient compliance was made to the requirements of the said Regulation by the plaintiff and all the necessary documents were transparently submitted by him and required notices were published. No objection was received in response to such publications, almost all the plots, around the suit property and on main Sharah- e-Faisal are commercial and many multistorey buildings stand thereon. On above facts, the plaintiff claimed the following reliefs:--
(1) That having complied with all the conditions and requirements of the KBCA as stated in their annexed letters, the plaintiff is lawfully entitled to raise construction of ground plus 13 storeyed building on Plot No,44-A, Block-6. PECH Society, Karachi.
(2) That the amalgamation and commercialization being made on the basis of no objections given by defendants, such amalgamation and commercialization is legal, and therefore. There is no justification in interference with the construction work of the plaintiff.
(3) That the construction of Building known as Nice Trade Orbit is strictly -as per approved plan duly approved by the defendants and permission to sell the offices and shops is in continuity of such approval.
7. (3-A) Any action, order, decision or direction taken, passed or given by defendant No,1 adversely affecting the amalgamation of Plot No,44-A/6, PECH Society, Karachi its commercialization the approval of the building plan and or the permission to sell the shops/offices in the building raised thereon, is unwarranted, unjust, illegal and void and are of no legal effect whatsoever.
8. Consequently, all the no objection certificates issued for such amalgamation, commercialization, sale of offices/shops, including the approval of building plan, subsist and are fully operating.
9. ' That the stoppage of construction work ordered by the defendaht No,1 was a mala fide act, on the part of the said defendant and such orders were in clear violation of building rules as all the conditions laid down by the defendant No, 1 vide its Letter KBCA/KDA/DCB-XXVII/99/653, dated 12- 6-1999 were duly complied with.
10. ' And while granting such declarations, this Honourable Court may be pleased to restrain the defendants, their agents, staff or anyone representing through them from interfering in the construction work of the plaintiff or demolishing or forcing the plaintiff to demolish any part of the building known as Nice. Trade Orbit.
11. ' The plaintiff also prays for costs of this suit and any other relief which this Honourable Court may deem fit and proper in the circumstances of the case.
12. ' The defendant No,2 (PECHS) in their written statement have admitted that Plots Nos.44-A, Block 6, PECHS, measuring about 1000 sq. Yds. Were transferred in the name of Nazzar Ali, Nizar Ali and Mehmood Ali, whereas, PlotNo,44-B, measuring about 1533 sq. Yds. Was transferred in the name of Shehzad Akbar, Shehbaz Akbar, Shehwaz Akbar and Mrs. Shehlina Akbar. Application for amalgamation of the two plots was submitted to the Society which was forwarded to the Karachi Building Control Authority, who after scrutiny, had granted the approval. The defendant No,1 granted its approval for commercialization of the plot vide their letter, dated 16-9-1997. The commercialization of the plots was also approved by defendant No,3 through their letter, Annexure "G". They have also admitted that the building plans were forwarded by them to the .Defendant No,1. However, further action on the said plans was not intimated to the Society, either by the plaintiff or from the defendant No,1. They have also admitted that land was granted to PECHS by Government of Pakistan through a licence agreement executed in the year 1958 and the control of the PECHS land still vests in the defendant No,3. They admitted that after survey of the plot as per actual position and measurement prevailing at the site, a plan was submitted to the Karachi Building Control Authority who confirmed the said plan through their Letter, dated 5-11-1999. They maintained that on 2-5-2000 through Letter No PECHS/P.C.S.-19/95/ I 61. The defendant No, I addressed a letter to the Honorary Secretary of PECHS, whereby the amalgamation of the two plots which were granted by the defendant No,1, itself has been withdrawn. The approved building plans have also been cancelled. They disputed the power of cancellation of permission granted for amalgamation in the year 1996 subsequent withdrawal of plan when the building is under construction and taken the same an example of maladministration and discrimination. They also pointed out that the approval of amalgamation has been withdrawn on the ground that it was granted beyond the restricted area of 800 sq. Meters. They have pointed out number of instances of the approval granted by defendant No,! Beyond the said area. They have detailed the instances of such amalgamation as follows:--
(1) 50-A and 50-B/6 were approved for amalgamation (2) Plots Nos.154-A, 154-B and 154-C Block 2 were approved for amalgamation, (3) Plots Nos.43-10-J, 43-10-K, 43-10-L and 43-10-M (4) Plots Nos.38-G-1 and 38-G-2 were also approved for amalgamation.
13. ' The defendant No,1 (Karachi Building Control Authority) through their written statement have contested the suit by raising pleas of facts and law.
14. ' On legal plane, they maintained that (1) the suit is not maintainable against the defendant No,1 as the Karachi Building Control Authority has not been impleaded as party in the suit.
(2) The suit is barred under section 42 of the Specific Relief Act as the plaintiff has no locus standi to file the suit under reference.
(3) The amalgamation of two plots having areas of 1000 sq. Yards and 1533 sq. Yards cannot be granted/allowed under Regulation 2(ii) of Schedule "D" Part II of Karachi Building and Town Planning Regulation, which states that the maximum areas of the amalgamated residential plots shall not exceed 800 sq. Meters (957 sq. Yards). Both plots in question at the time of amalgamation were residential plots having combined area of 2433 sq. Yards which is in excess of allowable limits under the law which renders the commercialization of plots in question to be unlawful having no legal effects with the result that the suit is not maintainable in law.
(4) As the provision of rule 4 of Schedule "D" Part II of Karachi Building and Town Planning Regulation have not been adhered for changing of land use of residential plots which requires that the concerned authority shall issue the public notice for the change of land use but in the case under reference the builder/plaintiff himself issued a small public notice in the newspaper and that too in the classified section to hoodwink the general public from objections to the said change of land use.
(5) The suit is not maintainable under section 56(d)(j) of Specific Relief Act, the defendant No,1 being statutory authority cannot be restrained from the performance of its duty by way of injunction.
15. ' On factual plane, it was pleaded that NOC for amalgamation of plots in question was not obtained from the competent Authority, as the Controller Building is not competent Authority appointed by the Government as such alleged NOC is void ab initio having no legal effects. The plaintiff obtained the alleged NOC by unlawful means otherwise it would not have been issued under the law as amalgamation of plots having more than area of 800 sq. Meter cannot be allowed under Regulation 2(ii) of Schedule "D". The defendant No,1 Authority is not responsible for the individual unlawful acts of its officers. The plaintiff arranged to obtain no objection for conversion of residential Plot No,44-A into commercial on the basis of fraudulent/ unlawful amalgamation so much so the commercialization is also against the provisions of rule 4(c) of Schedule "D" of the Regulation Part II which requires that the concerned authority shall issue public notice for inviting of objections which objections shall be conveyed by the concerned authority and thereafter final NOC to be issued by the concerned authority after approval of MP 'and EC but in the instant case neither final NOC was obtained nor the defendant No,3 has approved the commercialization of the plots and it was their case that the plaintiff on the basis of unlawful amalgamation and commercialization arranged to get the plan approved by unlawful means otherwise it should not have been approved under rules 27(2) Chapter 3 and 34(2) and rule 9(2) of Karachi Building and Town Planning Regulation Part I. They also pointed out that the following violations committed by the plaintiff during the construction of the approved plans:--
(A) KESC subsection provided in the basement of the building plan is clear contravention of rule 27(2) of Karachi Building and Town Planning Regulation.
(B) The minimum width of arcade should be 2.5 m (8.3 ft) whereas the width of arcade in the approved plan is 7'.5", which is in contravention of rule 34(2) of Karachi Building Town Planning Regulation.
(C) The approved plan does not show gradient of ramp which is in contravention of rule 9(2).
16. ' They have also maintained that the violation of building plan and advertisement were cancelled by KBCA vide letter, dated 2-5-2000 in accordance with the provisions of law by providing opportunity by issuing show-cause notice and it was further maintained that plaintiff also committed following violation in addition to other violations already pointed out.
(i) Plinth verification certificate was cancelled as the structure was against the approved plan.
(ii) Dimension has been changed (120 ft. 3 inches x 185 ft. 0 inch) average instead of (120 ft. 0 inch x 190 ft. 0 inch) and as such plot dimension has been changed with 3 ft. 0 inch.
17. ' Out of the pleadings of the parties, the consent proposed issues were taken as issues settled by this Court on 25-8-2001, which reads as follows:--
(1) Whether the suit is barred under sections 42 and 56(d) and (j) of Specific Relief Act, and also barred under Schedule D (page 51) Part II of Karachi Building Town Planning Regulations.
(2) Whether the amalgamation and commercialization of Plots Nos.44-A (1000 sq. Yds.) and 44-B (1533 sq. Yds.) into one plot of land of 2533 sq. Yds. Is illegal and invalid, if so its effect?
(3) Whether defendant No,1 has any right and authority to question or nullify the amalgamation of the suit-land and or its commercialization, more so, when the same was duly acted upon by the plaintiff and construction made thereon?
(4) What is the legal effect of the issuance by defendant No,1 of NOC dated 11-12-1997 (Annexure "H" of the plaint)?
(5) Whether defendant No,1 has rightly and justly stopped construction being raised on the suit- land, if not its effect?
(6) Whether the plaintiff committee any fraud or made any misrepresentation in obtaining the amalgamation of the suit-land, if so, its effect?
(7) To what relief, if any, the plaintiff is entitled?
18. ' At the trial, plaintiff Nazaz Ali examined himself and produced numerous documents, whereas, on behalf of the defendant No,1, Syed Mehmood Ali, the Deputy Controller Buildings was examined. The defendant No,2 (PECHS) examined Iqbal Ahmed, Administrative Officer, who also produced numerous documents. The witnesses examined on behalf of the respective parties were subjected to cross-examination. Their evidence and documents will be referred while discussing the issues as and when necessary. Issue No,1 The plea taken by the defendant is that the suit is barred under sections 42 and 56(d) and (j) of the Specific Relief Act and also barred by Schedule "D" Part II of Karachi Building and Town Planning Regulation. At the very outset, it can be conveniently observed that there is no barring provision in Regulation itself against the filing of the suit. So far as the plea that the suit is barred under section 42 of the Specific Relief Act is concerned, no doubt, every kind of declaration is not permissible under the law except in the circumstances mentioned in section 42 of the Specific Relief Act, which runs thus:- "42. Discretion of Court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to - any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.
19. Bar to such declaration.--- Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than mere declaration of title, omits to do so.
20. ' Explanation.--- A trustee of property is a person interested to deny a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee."
21. From the perusal of the above provision, it would be clear that a declaration can he asked for breach of proprietary right or declaration of legal character or status. The perusal of paras. 1 and 3- A are in respect of the declaration about the plaintiff's entitlement to raise construction and any decision or direction taken or given by defendant adversely effecting the amalgamation its commercialization A and approval of the building plan amounts to denial of proprietary right. The plaintiff is admittedly co-owner in the amalgamated plot and denial of his right in respect of the property would definitely fall under the provision of section 42 of the Specific Relief Act. Therefore, the contention of the learned counsel for the defendant that suit is barred under the provision of section 42 of the Specific Relief Act is not tenable. Secondly, he contended that the plaintiff is not the sole owner of the plots and co-owners have not been joined, as such, the suit is not maintainable.
22. ' I have examined the written statement, no plea of non-joinder has been taken by the defendant No,l. No issue has been framed, therefore, in terms of rule 13 of Order 1, C.P.C., which requires that all objections on the ground of non-joinder, or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived, cannot be raised after the framing of the issues at the stage of arguments.
23. ' It has also been argued by the defendants' counsel that the injunction prayed for is barred under the provision of clauses (d) and (j) of section 56 of the Specific Relief Act for convenient, the provision of section 56 is reproduced as under:-
(a) ....................
(b) ..................................................
(c) .
(d) To interfere with the public duties of any department of (Central Government, or any Provincial Government), or with the sovereign acts of a Foreign Government
(e) .
(f) .
(g) .
(h) ..
(i) ..
(j) When the conduct of the applicant or his agents has been such as to disentitle him to the assistance of the Court.
(k) .
24. ' It may also be noted that under clause (j), the Court can refuse injunction when Court comes to the conclusion that the conduct of the plaintiff or his agent is such As to disentitle him to the assistance of the Court.
25. ' The counsel for the defendant only contended that the order of amalgamation was obtained by the plaintiff against the restricted area under Regulation with the connivance of the staff of the defendant No,1, as such, he is not entitled for the injunction or the assistance of the Court for such restraint.
26. ' Mr. H.A. Rehmani has reiterated his contention that the plaintiff applied to the defendant No,2 for amalgamation, who in turn sent the matter to the defendant No,1 for issuance of NOC and in the same manner the matter was processed regarding the commercialization of the plots. There was no suppression of fact, nor such allegation was made and mere pleading collusion at this stage, without any allegation in the pleadings or proof, the plaintiff's conduct cannot be taken in any way to disentitle him for the relief of injunction.
27. ' Mr. H.A. Rehmani is right in his contention. The conduct of the plaintiff should be condemnable to disentitle him to the assistance of the Court. The conduct on the part' of the party disentitled him to the assistance must be pleaded and proved. No such fact has been pleaded except unlawful means, which has not been proved, as such, the plea under clause (j) is not available.
28. ' It has also been contended by Mr. Raja Sikandar Khan Yasir that the grant of injunction as prayed for would amount to interference with the public duties of the KBCA, therefore, the injunction cannot be granted.
29. ' Mr. H.A. Rehmani, learned counsel for the plaintiff contended that under clause (d) of section 56, injunction can be refused when it amounts to interference with the public duties of any department of Central Government or any Provincial Government or with the sovereign acts of a Foreign Government and contended that the KBCA cannot be taken as "department" of Central Government or Provincial Government and pointed out that similar situation was examined in Muhammad Rashid Bhatti v. K.D.A. PLD 1986 Kar. 130, wherein the same plea was considered with ref hence to the Karachi Development Authority. The plea raised was that respondent No,1 (K.D.A.) is a department of the Government, and therefore, no order of injunction can be passed interfering in the discharge of its duty. After examining the provision of Order V of 1957, it was held that the K.D.A.
30. Is a body corporate having perpetual succession and common seal with power subject to the provision of the order to acquire and hold properties not movable and immovable and can sue and be sued. Under Article 4 the management of the K.D.A. Is generally under the direction and administration of the governing body which is constituted under Article 5, which shall be guided on question of policy by such directions, as Provincial Government may from time to time issue. In the question, whether a matter is a matter of policy or not, the decision shall vest with the Central Government which will be final. The Chairman and the Director-General are appointed on such terms and conditions as the Provincial Government may determine. It was further observed that it is clear that the Karachi Development Authority as described by the Order itself is corporate body having an independent juristic person Which can own and dispose of immovable and immovable properties and can sue and be sued. These powers are conferred by virtue of Order V of 1957 and nowhere it has been described as a Department of the Government and or even functionary of the Government. It is true that the Director-General and the Members of the governing body are appointed by the Provincial Government and in matters of policy guidance is also sought by the Provincial Government but these factors do not render the Karachi Development Authority as a Department of the Government. It was further held that the Department as used in section 56(d) connotes an establishment, division, unit, faculty or branch of administration under the control of the Government at higher level completely .Separate from its officers. The Officers cannot be called a Department of the Government. They are merely functionaries appointed to exercise the powers as provided under the law, Rules or Regulations with a view to carry out the policy object and priorities as laid down by the "Department". In our policy one can find Departments like Education Department, Law Department and Science and Technology Department, Health Department, Home Department and General Administration Department.
31. ' Under section 4(3) of the Ordinance, 1979, the Karachi Building Control Authority is a body corporate having right td sue and to be sued with powers to appoint officers, advisers. Experts, consultants and employees for efficient performance of its functions and all such terms and conditions with Supervisory power with Control Committee to oversee the functioning of an Authority.
32. From the above provision, the Karachi Building Control Authority is a corporate body having an independent juristic person with right to sue and to be sued. It has not been described as department of the Government and with right to appoint officers, advisers, experts, consultants for efficient performance of its functions. Those officers, advisers, experts, consultants and employees are deemed to be the public servants within the meaning of section 21 of the Pakistan Penal Code and under the supervision of a Committee subject to the control and direction of Governments. But these factors do not render the defendant No,1 as department of the Government. Therefore, the plea is not tenable that the injunction cannot be granted against defendant No,l.
33. ' Issues Nos.2, 3 and 6 These issues can be dealt with together as almost the facts are admitted, and or not disputed.
34. ' Mr. H.A. Rehmani, learned counsel for the plaintiff submission was that the plaintiff applied for the amalgamation of Plots Nos.44-A and 44-B. Measuring about 1000 sq. Yds. And 1533 sq. Yds.
35. Respectively of Block 6, PECHS to defendant. No,2, the lessor, who forwarded the matter to defendant No,1 for the purpose of scrutiny and issuance of no objection through Exh.P.W.1/3. He also maintained that while forwarding the matter of amalgamation, the area of plots to be amalgamated were brought to the notice of the defendant No,1 and referred the amalgamated plan Exh.P.W.1/6-A, which contains the areas of plots amalgamated as 1000 sq. Yds. And 1533 sq.
36. Yds. Thus, according to him, there was no suppression of fact on the part of the plaintiff with regard to the area. He pointed out that the defendant No,1 granted N.O.C. To the proposed amalgamation from the Town Planning point of view subject to the condition enumerated therein, which were as follows:--
(1) Subject to the approval of Ministry of Works, Government of Pakistan, Islamabad.
(2) Rule of the original category shall be applied on the amalgamated plots.
(3) In case of any complaint/dispute, or any Court matter the Karachi Building Control Authority/Karachi Development Authority shall not be authority and shall not be responsible.
(4) Building plan should be got approved from Karachi Building Control Authority/Karachi Development Authority.
(5) Corner should be chamart as marked on the plot.
37. ' Mr. H.A. Rehmani, learned counsel for the plaintiff also referred Exh.P.W.1/6, whereby the plaintiff was informed about the issuance of N.O.C. Of the amalgamation of the residential plots referred to above alongwith amalgamated plan. He also pointed out that Government of Pakistan Ministry of Housing and Works has issued their no objection vide their Letter No,F1(3770)/96-EVI, dated 27-8- 1999. It has also been pointed out that the plaintiff after amalgamation of the residential plots and issuance of plan of amalgamated plot with assignment of new No, as 44-A, the plaintiff applied for commercialization of the amalgamated plots from residential to commercial. The defendant No,3 granted the approval after issuance of no objection by the defendant No,1 as Exh.P.W.1/7. He also pointed out that no objection for conversion of residential plot into commercial by the Ministry of Housing and Works, Government of Pakistan by their Letter No,F/1(3770)/96-EVI, dated 2-2-2000.
38. The above facts are not disputed. It is also admitted fact that plaintiff submitted the building plan to defendant No,2 who forwarded the same to defendant No,1. The defendant No,1 granted approval of the building plan vide their architectural approval conveyed to the plaintiff. Mr. H.A.
39. Rehmani contended that after the process of amalgamation/ commercialization and after obtaining the approval of building plan, the plaintiff had started construction after huge investment, all of a sudden, the defendant No,1 addressed letter to the defendant No,2 vide their.
40. Letter No, PECHS/P . C . S. -19/96/161, dated 2-5-2000 as Exh .D. W.1/1, whereby N.O.C. Granted through Exh.P.W.1/4 on 1-8-1996 was withdrawn through letter dated 2-5-2000 on the ground that the N.O.C. Granted/ obtained was beyond the area restriction i,e, 800 sq. Meters as per Schedule D Part I of Town Planning Regulation II of 1997. Mr. H.A. Rehmani submission was that amalgamation approval is conclusive and final and defendant No,1 has no power and authority to annul the same on the purported ground of exceeding restricted area under para. No,II of Schedule D of Part II of Karachi Building and Town Planning Regulation. He raised the following contentions:--
(1) The Regulation in question is beyond the scope of provision of Sindh Building Control Ordinance, 1979 and thus, ultra vires.
(2) Alternatively without prejudice to the first plea, the Regulation is directory in nature and so the alleged non-compliance thereof cannot invalidate the amalgamation, more so, because the plaintiff having acted upon bona fide and in good faith invested huge amount in getting the amalgamated plot of land. The defendant No,1 on issuance of N.O.C. Becomes functuous officio.
(3) There is no allegation that amalgamation was obtained by suppressing of any fact by the plaintiff, nor any mispresentation can be alleged as the plaintiff has submitted all the relevant and true papers relating thereto and the process was completely transparent and bona fide exercise on the part of the plaintiff.
41. ' Adverting to first contention, Mr. H.A. Rehmani, contended that the Ordinance of 1979 was promulgated with the object to regulate planning, quality of 'construction and building control, price charged and publicity made for the disposal of building and plots by the builders and the society and demolition of the dangerous and dilapidated buildings in the Province of Sindh. He also pointed out that under section 21-A(1), the authority under the Ordinance has been delegated with the powers to frame Regulations not inconsistent with the provisions of the Ordinance and the rule made thereunder for the carrying out the purpose of the Ordinance, inter alia, in respect of the items mentioned in subsection (2) thereof. He also pointed out that subsection (3) thereof lays down that the regulations shall until the same are framed under the above sections be deemed to be the regulations so framed provided that they are not inconsistent with the provisions of the Ordinance and rules framed thereunder. He contended that till the regulations are framed, the Karachi Building and Town Planning Regulations are in force in terms of subsection (3) except those provisions of Regulations which are inconsistent with the provisions of the Ordinance and his submission was that para. 2 of Schedule D of Regulation 26 of Part II, are ultra vires, containing the provision for the sub-division, amalgamation and change of land use in approved schemes and other areas, the criteria laid down there read as follows:-- "2. Amalgamation of two or more plots shall be allowed by the concerned Authority ' in consultation with M.P. & E.C. On the plots whose land grant, terms and conditions shall be similar but in case, where there are no similar terms and conditions the lease conditions of the plot which expire earlier shall prevail.
(i) Rules of original plots shall be applicable on the amalgamated plot, except compulsory open space which shall be decided by the concerned Authority in consultation with M.P. & E.C. And no separate building or bungalow will be permitted on the amalgamated plot, where there is no similar category of plots, the terms and conditions of the larger plot shall prevail.
(ii) Maximum area of the amalgamated residential plot shall not exceed 800 sq. m. (957 sq.
42. Yards)."
43. ' Mr. H.A. Rehmani maintained that unlees the Ordinance contains the provision for amalgamation of the plots, the regulation covering the same cannot be resorted to by the authority. His contention was that the Ordinance lacks such power and referred case of Karachi Building Control Authority and 3 others v. Hashwani Sales and Services Limited and 3 others PLD 1993 SC 210. The facts of the case were that the Authority in purported exercise of power under section 21-A of the Ordinance, 1979 framed two Regulations and were inter alia, published in Daily newspaper "Dawn" dated 7-4-1984, which are as follows:-- "Regulations.--- (1) Approval of Building Plans or permission for reconstruction of buildings over plot or plots having existing structure under occupation of tenant/tenants shall not be accorded by the Authority unless an agreement is arrived by the landlord/ owner and the tenant for alternate accommodation or for mutually agreed compensation.
(2) All permissions accorded/granted by the Authority wherein an agreement between landlord/owner and the tenant/tenants has not been submitted are hereby suspended with immediate effect if no physical construction has been started in pursuance of the permission/approval already accorded, and the premises are still occupied by the tenant."
44. ' The Regulations referred to above were challenged through Constitution petition, which was allowed by Division Bench of this Court and the regulation referred to above were struck down being ultra vires. The plea raised before the Supreme Court was that if the preamble of the Ordinance is to be read with the other provisions of the same, it becomes evident that the Regulations are intra vires and have been framed for public good. The view taken by the High Court that inherent defect of Regulation being unfair, in-practicable and unreasonable, was approved.
45. ' Mr. H.A. Rehmani also referred the decision of Messrs Neelam Textile Mills Ltd. v. State Bank of Pakistan and 2 others PLD 1999 Kar. 433 that according to all established cannons of interpretation the rule cannot be read in isolation, divorced from the parent statute or the scheme prepared thereunder.
46. ' Mr. Raja Sikandar Khan Yasir, learned counsel for the defendants with vehemence contended that the Regulations have the statutory force by virtue of subsection . (3) of section 21-A of the Ordinance and referred the case of (1) Multiline Associate's v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423, (2) Ardeshir Cowasjee and 10 others v. Karachi. Building Control Authority (K.MC.) and 4 others 1999 SCM R 2883, (3) Messrs Excell Builders and others v. Ardeshir Cowasjee and others 1999 SCM R 2089 and contended that the regulations are to be enforced by Karachi Building Control Authority, which is "Authority" competent under the Ordinance and has statutory obligation to enforce the regulations.
47. ' No doubt in 'cases referred to above by Mr. Raja Sikandar Khan Yasir support his contention that the regulations commonly known as "Karachi Building Control Regulations" have statutory force by virtue of subsection (3) of section 21-A of the Ordinance but only to the extent of those provisions which are not inconsistence with the Ordinance.
48. ' It may be pointed out that the Karachi Building Regulation was framed under the Karachi Development Order, 1957, the said Authority was entrusted with the Development and improvement of schemes in Karachi area as evident from the preamble of the said order, which reads as follows:-- "Whereas it is expedient to make provision for the development and improvement of certain areas in the Karachi Division by opening up congested area, laying out or altering streets, providing public amenities like parks, gardens, and playgrounds, executing works for water supply and sewerage or by demolishing, improving or constructing buildings for the acquisition of land for such development or improvement including the re-housing of persons affected thereby and certain other persons for the preparation and execution of development or improvement schemes, building research schemes and similar other schemes, and for matters connected therewith or incidental thereto."
49. ' However, the Ordinance was promulgated in 1979, with the object to regulate the planning, quality of construction and building controls, prices charged and publicity made for disposal of buildings and plots by builders and Societies and demolishing of dangerous and dilapidated buildings in the Province of Sindh. There is also no provision in the Ordinance, whereby the "Authority" has been entrusted with power of development and improvement of scheme, and acquisition of land for such development or improvement, nor has been pointed out by the learned counsel for the defendant No,1.
50. The plot in question does not fall in any of the K.D.A. Scheme but in P.E.C.H.S. Controlled by the Government of Pakistan, who has granted land to the defendant No,2, who after framing the scheme leased it to different persons. The lessor is the competent Authority for amalgamation. The defendant No,1 has no such power under the Ordinance, therefore, the Regulations 26 and Schedule "D" of Part II of the Regulations cannot be enforced by defendant No,1 under the Ordinance, being ultra vires of the Ordinance.
51. ' Mr. H.A. Rehmani, reverting to the second contention submitted that the area limitation in para. 2 of Schedule "D" is not mandatory provision and pointed out that the test whether a provision is mandatory or directory has been highlighted by Supreme Court in Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC 134 as follows:-- "It is true that no universal rule can be laid down for the construction of statutes as to whether mandatory enactment shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of the Courts to try to get at the real intention of the Legislature, by carefully attending to the whole scope of the statute to be construed. As a general rule, however, a statute is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them, the facts shall be null and void. To put it differently, if the Act is directory, its disobedience does not entail any invalidity if the Act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision."
52. ' Mr. H.A. Rehmani also referred the decision of Mst. Nawab Bibi v. Mst. Rafiq Bano PLD 1971 SC 481, on the point whether a negative direction given in a statute is absolute or mandatory. The question which, inter alia, under consideration was that whether non - production of no objection certificate from the Income Tax Department vitiates the registration? Under the provisions of section 3 of Transfer of Property. (Pakistan) Ordinance (No,IV of 1947), the production of N.O.C. From concerned.
53. Income Tax Officer, at the time of registration was a requirement. The provision reads as under:-- "No Registration Officer, Revenue Officer, Custodian or other officer appointed to deal with property shall register any document, relating to property other than agricultural land, which is required to be registered under the provisions of clauses (a), (b), (c) or (e) of subsection (1) of section 17 of the Registration Act, 1908 unless it is certified by any Income Tax Officer in respect of every person whose right, title or interest in the property is or will be transferred, assigned, limited or extinguished under the terms of the document, either that such person is not liable to taxation under the Income-tax Act, 1922, the Excess Profits Act, 1940 or the Business Profits Tax Act, 1947 or that he has either paid or made satisfactory provision for, the payment of all existing or anticipated liabilities under any of the said Act.
54. ' Provided that no such certification shall be necessary in respect of sale by a bank as a mortgagee empowered to sell."
55. ' The view taken was that the reading of the Transfer of Property (Pakistan ) Ordinance (IV of 1947), as a whole, shows that the Ordinance does not invalidate the registration of a document if it is in contravention of section 3. On the other hand, it prescribes that if transfer has been effected in contravention of this provision, the Income-tax Authorities will demand certificate under section 3 and on failure of its production have been directed to recover the tax from any party to the transaction through the Collector. The prohibition laid down in section 3 of the Transfer of Property (Pakistan) Ordinance (IV of 1947) further shows that it is in the nature of a direction given to the Registering and other authorities that a transaction will not be registered unless it is accompanied by a certificate of Income-tax Authorities. This direction is in the nature of a public duty and its non-compliance over which the public or the parties have no command or control will result in general inconvenience and, therefore, it is a directory provision and cannot nullify the registration effected by the Registering Authorities.
56. ' Mr. H.A. Rehmani also cited case of Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCM R 1305 on test whether a provision of is mandatory or directory, wherein following observation occurs:-- "No doubt there exists no faultless acid test or a universal rule for determining whether a provision of law is mandatory or directory and such determination by and large depends upon the intention of Legislature and the language in which the provision is couched but it is by now firmly settled that where the consequence of failure to comply with the provision is not mentioned the provision is directory and where the consequence is expressly mentioned the provision is mandatory."
57. ' It, was held in Niaz Muhammad Khan v. Mian Afzal Raqeeb PLD 1974 SC 134 that as a general rule a statute is understood to be directory when it contains matters merely of direction but it is mandatory when those directions are followed by an express provision that in default of following them the effect shall be null and void.
58. ' In Major Shujat Ali v. Mst. Surriya Begum PLD 1978 SC (AJ&K) 118, it was held that "in absence of a penalty for failure to follow the prescribed procedure the provisions are to be taken to be directory and not mandatory".
59. ' With the assistance of the learned counsel for the parties, I have examined the provisions of Schedule "D" of Regulations 26, Part H but nothing was pointed out in the Regulation that the non- compliance of para.2 entails any default clause or penal consequences. Therefore, by following the view taken by the Supreme Court in cases of (1) Mst. Nawab Bibi v. Mst. Rafiq Bano PLD 1971 SC 481,
(2) Niaz Muhammad Khan v. Mian Fazal Raqeeb PLD 1974 SC 134 and (3) Maulana Nur-ulHaq v.
60. Ibrahim Khalil 2000 SCM R 1305 that the consequence of failure to comply with the para.2, Schedule "D" of the Regulation Part II, regarding area restriction, being a directory provisions and its noncompliance in the process of issuance of N.O.C. Will not make the same ineffective, illegal or void.
61. ' Reverting the contention regarding the conversion, it has been contended by Mr. H.A. Rehmani that the status of the defendant No,1 under the Regulation is Advisory Body and in relation to the conversion/use of land of P.E.C.H.S. Competent Authority is Ministry of Works, Government of Pakistan. According to Schedule "D", Part II, page No,45 of Regulations:-- S.No. Name of area/ Housing schemeNotified area in acresLegal statusGovernment, sanction letter No, and dateRestrictive provisionsState of the scheme
(2) PECHS --- Approved by Govern- ment of Pakistan--- K.M.C.
62. Building Bye laws.
63. 1972 lease deed allotment conditionsLand control Ministry of Works Government of Pakistan Building Control Civic Amenities K.M.C.
64. ' This fact is also admitted by the witness of defendant No,1, Syed Mehmood Ali, therefore, his contention was that the defendant No,1 has no power regarding conversion/use of the plot from residential to commercial and same vests with the Ministry of Works, Government of Pakistan.
65. ' Before proceeding further, it may be pointed out that standard agreement of lease, Form "B"
66. (General Form) are in vogue in respect of plots of Pakistan Employees' Cooperative Housing Society Limited and para. 7 thereof, contains restrictive covenants that plot and building or erection built or to be built thereon shall be used for residential purposes only and shall not be diverted to other use without the express consent in writing of the lessor and in case of breach of the said convenient, the lessor shall be entitled to forfeit the lease and to resume the plot. Admittedly, the grantor of plot in question is President of Pakistan. The similar question came for consideration that who is authority to permit conversion/use of plot from residential to commercial in Syed Ali Asghar and 3 others v. Creators Builders and 3 others 2001 SCM R 279, the facts of the case were that the respondent No,1, a construction company started construction of high-rise building on Plots Nos.154-A, 154-B, 154-C and 154-D in the name and style of Anum Gems and Jewellers Mall (Annum Livina) owner of premises bearing Nos.153-C and D, protested that the respondents were raising a commercial building in the residential area by obtaining approvals and N.O.Cs. From the concerned agencies including, K.D.A., K.B.C.S.A. And P.E.C.H.S.,. According to the petitioners, N.O.Cs., have been obtained unlawfully and the respondents Nos.2 to 4 have unlawfully allowed conversion of the residential plots into commercial. In this background, the petitioners filed the Constitutional petition, which was dismissed with following observations:-- "It is an admitted position that respondent No, l's one plot has already been commercialized conversion and amalgamation the respondent No,1 had invited objections in newspapers. Even the Environmental and Utilities Department of K.B.C.A. Has granted the necessary approval on 22-11- 1997. The contention of Mr. K.M. Nadeem that due to construction the environmental problems would arise has no force. The petitioners have filed this petition on 10-12-1998 after a lapse of about one year which delay has also not been satisfactory explained by them."
67. ' Leave to appeal was tiled and the plea, inter alia, raised was that K.B.C.A. Has no power to change the use of land and that it was only K.D.A. Which under Article 40 of K.D.A. Order 5 of 1957, could grant permission for change in use of land for any purpose other than laid in the Zonal Plan Scheme notified under clause (3) of Article 40 of the Order. It was further maintained that under section 6(3) of the Sindh Buildings Control Ordinance, 1979 use of the building could be changed for the purpose other than for which its plans were approved by the authority under the said Ordinance. Which permission could be granted only after the building is raised, but before the building is raised, it would be K.D.A. Under Article 40 to grant such permission for change in use of plot. It was further submitted that Regulation. 4 of Karachi Building and Town Planning Regulations (Part II) at page No,51 has not been followed by the K.B.C.A., whereunder no residential plot was to be converted into any other use except with the approval of M.P. And C.E. The leave was refused with the observations that the covenants of lease in respect of the plots specifically mentioned that in case change in use of the plots consent was to be obtained from the lessor, who leased out the plots in favour of the respondents would be competent to give such permission. The respondents have admittedly obtained N.O.C. From the Government of Pakistan Ministry of Housing and Works, therefore, in the instant case it could not be said that respondents have not obtained permission from the competent Authority for the change in use of the plots in question. So far section 6(3) of Sindh Buildings Control Ordinance, 1979 would not be applicable as in the instant case permission for change in use of building was not required but change in use of plots was required which permission was obtained by the respondents from the concerned authority.
68. ' On the basis of above dictum, Mr. H.A. Rehmani contended that in respect of the leases containing the restricted covenants on use of the plot, the lessor who leased out the plots in favour of the lessee would be competent to give such permission. His contention was that admittedly, the Ministry of Housing and Works, Government of Pakistan is the competent Authority to grant permission. His further contention was that the defendant No,1 has the authority for conversion of use in respect of the building and not in respect of the plot in terms of section 6(3) of Sindh Building Control Ordinance, 1979, which reads as follows:-- "6(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."
69. ' Mr. Raja Sikandar Khan Yasir, learned counsel for the defendant contended that the judgment recorded in Syed Ali Asghar and 3 others v. Creators (Builders) and 3 others 2001 SCM R 279 is observation per incurieam as the cases of (i) Ardeshir Cowasjee v. Government of Sindh 1998 M LD 1219, (ii) Excell Builders v. Ardeshir Cowasjee 1999 SCMR 2098 and (iii) Abdul Razzak v. Karachi Buildings Control Authority PLD 1994 SC 512 were not considered, wherein the regulations have been held to have the statutory force and the defendant No,1 is the authority to grant permission for conversion of the plots. The plea taken by Mr. Raja Sikandar Khan Yasir is not tenable for the reasons that section 6(3), pertains to the power of the authority under the Ordinance to permit conversion of the building in terms of subsection (3) of section 6 for the E use for the purpose other than for which its plan was approved. The provision cannot be stretched any further to include the land/plot as the term "building" has been defined in clause (d) of subsection (1) of section 3 in the following words:-- "(d) 'Building' means a building or part thereof and includes all fittings, fixtures, installations, signs and display structures of the building but does not include any building notified by the Authority."
70. The judgment per incurieam would be the judgment, which has been rendered without considering the relevant provisions of law or the legal decision on the point. In the case of Syed Ali Asghar (supra) neither the provisions of law involved were ignored nor the legal decision on the subject, in such circumstances, to attribute judgment per incurieam is not tenable nor warranted in the circumstances, particularly, in respect of a judgment recorded by apex Court.
71. ' In the present case, the plaintiff has obtained N.O.C. From defendant No,1. An authority for master plan and for environmental control and have also obtained permission for the change of use of the plots from the Government of Pakistan, Ministry of Housing and Works vide Letter No,F.1(3770)96-EVI, dated 2-2-2000 as Exh.P.W.1/8. Therefore, it could, not be said the the plaintiff has not obtained permission from competent Authority for the change of use of suit plot.
72. ' It was also submitted that Regulation 4 of Part II at page No,51 has not been complied with which requires public notice inviting the objection to conversion. The plaintiff has maintained that the notice was published objection if any was to be received by defendant No,2 who was required to submit the same to defendant No,1. No objection was received by the defendant No,l. Therefore, it has been contended that substantial compliance was made. Mr. H.A. Rehmani is right in his submission.
73. ' Last submission addressed by Mr. H.A. Rehmani was that the amalgamation of residential plot and its commercialization has taken effect and the plaintiff has started the construction, huge amount has been invested, thus, the same has been acted upon and a valuable right has accrued in favour of the plaintiff, the same cannot be withdrawn. He submitted that under section 21 of the General Clauses Act, the authority has power to make an order with the power to undo it but subject to the exception that where the order has taken legal effect and pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those right. Reference to the view taken in (1) Mehmooda Begum v.
74. D.M., Sialkot PLD 1991 Lab. 230 and (ii) Chairman Selection Committee/ Principal, King Edward Medical College v. Wasif Zamir Ahmed 1997 SCM R 15 can be referred.
75. ' In the later case, the view taken was that principle of locus poenitentiae was although available to Authorities, whereby any order which was made by mistake could be undone yet such order could not be withdrawn or rescinded once it had taken legal effect and created certain rights in favour of any- individual. The facts of the above case was that the respondent was granted admission in M.B.,B.S., he was allocated with Roll No, and was asked to join M.B.,B.S. First Year, subsequently, the admission was withdrawn and his seat was given to another candidate on the pretext that the respondent was given admission due to mistake of computer. In above case, even the mistake on the part of the computer was condoned, once it was acted upon and no role in such mistake was found on the part of the respondent.
76. ' Learned counsel for the defendant has with vehemence contended that the authority, who has granted N.O.C. Has power to recall and rescind it under the principle of locus poeniteniae as the same was obtained by the plaintiff with the collusion of the staff of the defendant No,1, therefore, the cancellation is legal and proper. He referred the case of Manzoor Hussain and 3 others v.
77. Muhammad Siddique 2000 CLC 623, wherein the term Collusion has defined in the Black's Law Dictionary (Fifth Edition) as well as Warton's Law Lexicon, 14th Edition were adopted and the conclusion was drawn that an element of fraud is inbuilt in said expression (Collusion).
78. ' Mr. H.A. Rehmani with vehemence contended that there is no allegation of collusion or fraud in the cancellation letter and cannot be taken during the arguments in absence of a plea and evidence in terms of rule 4 of Order 6, C.P.C., which requires that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleadings.
79. ' Mr. H.A. Rehmani has also pointed out from the Black's Law Dictionary (Sixth Edition) that "misrepresentation" means any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts. An untrue statement of fact. An incorrect or false representation. That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists. Colloquially it is understood to mean a statement made to deceive or mislead. As amounting to actual legal fraud consists of material representation of presently existing or past fact, made with knowledge of its falsity and with intention that other party relies thereon resulting in reliance by that party to his detriment. In a limited sense, an intentional false statement respecting a matter of fact, made by one of the parties to a contract, which is material to the contract and influential in producing it. A "misrepresentation", which justifies the rescission of a contract, is a false statement of a substantive fact, or any conduct which leads to a belief of a substantive fact material to proper understanding of the matter in hand, made with intent to deceive or mislead.
80. ' I have examined with the assistance of the learned counsel for the parties, the written statement filed by the defendant No,1 as well as amended written statement. There is no such plea except the illegality (unlawful means) attributed to the issuance of. N.O.C. For amalgamation due to area limitation under para. 2 of Schedule "D" of Part II of the Regulation.
81. ' The fact is even admitted by the witness examined by defendant No,1, namely, Syed Mehmood Ali that during the process of no objection for the amalgamation of the plots, the matters were between the K.B.C.A. And the P.E.C.H.S. And not the plaintiff witness. Syed Mehmood Ali examined on behalf of the defendants has also admitted that the control of P.E.C.H.S. Land is under the Ministry of Works, Government of the Pakistan through P.E.C.H.S. And in respect of the plots in P.E.C.H.S. The K.B.C.A. Cannot issue N.O.C. For commercialization without the consent of the Ministry/P.E.C.H.S. ' Mr. Raja Sikandar Khan Yasir has contended that in terms of section 21 of the General Clauses Act, the Authority which can pass an order, is entitled to vary, amend, add to or to rescind that order which is such power is commonly known principle of locus poenitentiae and maintained that no objection was given in violation of the restrictive area of the Schedule "D" of the Regulation, as such, all the effigies complied thereon has to be raised on the ground and will have no legal effect. He referred the cases of The Engineer-in-Chief Branch v. Jalaluddin PLD 1992 SC 207. In the above case, it is held that locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed become irrevocable and is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order, (ii) Mehmooda Begum v. D.M., Sialkot PLD 1991 Lah.
82. 230.
83. There is no cavil to the proposition enunciated in the cases referred by Mr. Raja Sikandar Khan Yasir that locus poenitentiae is the power of receding till a decisive step is taken a principle of equity but is not principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. In the instant case, as I have come to the conclusion that the plaintiff has not suppressed any fact. The 'N.O.C. Was granted for amalgamation subsequent to the amalgamation, the residential plot has been converted into commercial use and plan has also been approved for the construction none other than by defendant No,1 and no objection was also issued for the advertisement for the booking of the shops, offices and flats in the project. During the construction, the N.O.C. Was for amalgamation of the plots was withdrawn only on the ground that it was issued against the restricted area, which has not been found to be a mandatory provision, thus, in the present circumstances, the Authority had the power of receding till the decisive step is taken, in the instant case conversion has been granted acted upon the plaintiff claimed to have invested huge amount. Construction has not been disputed, thus decisive steps have been taken, valuable right has been created investment has been made, therefore, the principle of locus poenitentiae would not be available to the defendant No,1 for recall of N.O.C. In the year 2000, issued in the year 1996.
84. Therefore, these issues are decided in favour of the plaintiff.
85. ' The witness examined on behalf of the defendant No,2, namely, lqbal Ahmed has deposed that the approvals beyond the area have been granted by the defendant No,2 in respect of the Plot No,50-A and 50-B of Block-6, Plots Nos.154-A, 154-B and 154-C of Block-2, similarly Plots Nos.43-10- J, 43-10-K, 43-10-L and 43-10-M were also approved in like manner. Plots Nos.38-G-1 and 38-G-2 were approved for the amalgamation. This reflects the discrimination on the part of the defendant No,2 by withdrawal of the N.O.C. For amalgamation. Issues Nos.4 and 5. It may be stated that N.O.C., dated 11-12-1997 Exh.P.W.1/12 is no objection certificate of the sale and advertisement of shops and offices at project namely Nice Trade Orbit, whereby the defendant No,1 approved the advertisement on terms and conditions specified therein, inter alia as follows:--
(1) The Builders shall submit the N.O.C. From K.W. And S.B, K.E.S.C., Sui Southern Gas Company, builders' licence, final approval of the building plan.
(2) That Builder shall submit that Printed Brochure and Application Form etc. Within 30 days.
(3) As per undertaking dated 24-11-1997, submitted by the Builder.
86. ' No doubt, the plaintiff has deposed that construction started by him was in accordance with the approved building plan. The plaintiff has produced architectural approval by the defendant No,1 Exh.P.W.1/11, 'conveying the approval for basement plus ground plus first to third floor for car parking and fourth to thirteen floor, commercial and such approval is not valid for construction and was issued subject to conditions enumerated therein. One of the conditions was that approval of structural designs which has not been brought during the trial. Though the plaintiff commenced the construction and certain violations were also pointed out. The violations pointed out during the inspections and further violation was also pointed out in the following terms:--
(a) Roof projection on the roof of the ground floor which is even against the alleged approved plan.
(b) Conditions of alleged approval letter dated 14-2-1998 have not been complied with.
(c) Plinth verification 'certificate was cancelled as the structure was against the approved plan.
(d) Dimension has been changed (120 ft. 3 inches x 185 ft. 0 inch) average instead of (120 ft. 0 inch x 190 ft. 0 inch) and as such plot dimension has been changed with 3 ft. 0 inch.
87. ' Section 6 of the Ordinance mandates that no building shall be constructed before the authority has in prescribed manner, approved the plan of such building and granted no objection certificate for construction thereof.
88. ' The Chapter 2 of Regulations contains the procedure for the submission and approval of the plans. The Regulation 9 requires the submission of different plans enumerated therein including details drawing and structure calculation. In the instant case, the plaintiff has based his case for approval on the basis of issuance of N.O.C. For the advertisement as well as architectural approval both cannot be constituted as approved building plan for the purpose of construction, unless the conditions are fulfilled the N.O.C. For advertisement cannot be treated as approval of the plan. In absence of approved plan, the defendant No,1 was within his right for stoppage of the construction work. In case, the plaintiff has complied with the requirement of Regulation of Chapter 2, Part I more particularly, compliance of Regulation 9 and in case of non-approval within the power specified in Regulation 13, the plaintiff may serve a notice under Regulation 13(3) provided the building plan does not contravene the provisions of Regulation of the master plan of such development scheme.
89. Therefore, these issues are decided as observed above.
90. ' Though no issue has been framed regarding the violations in the construction as pointed out by defendant No,1 and explained by the plaintiff through the evidence. I am of the view that the same need not to -be addressed as the plaintiff has not being successful in bringing the approved plan during the trial. Issue No,7 In view of the findings on the above issues, the suit of the plaintiff is partly decreed in the following terms with no order as to costs:-- That the amalgamation of the suit property and its commercialization are legal and any action/order/decision/direction taken/passed or given by defendant No,1 adversely effecting the amalgamation/its commercialization is unwarranted, unjust and of no legal effect and all the no objection certificates issued for such amalgamation/commercialization- substance are fully operative. The approval of the building plan not to be withheld by defendant No,1 above grounds.
91. Order accordingly.
92. 2002 CLC 1495 [Karachi] Before Muhammad Mujeebullah Siddiqui, J DAWOOD SHAH---Applicant versus FAQIR MUHAMMAD and others---Respondents Revision Applications Nos.157 and 158 of 1996, decided on 19th April, 2002.
93. Civil Procedure Code (V of 1908)--- ----S. 115---Specific Relief Act (I of 1877), Ss.8 & 9---Suit for declaration of possessory title--- Revision---Observations made and the findings given by the Appellate Court were so perverse that it was totally shocking to the judicial conscience---Trial Court had considered the entire material on record and had rightly found that the Municipal Corporation to whom the subject plots belonged, had accepted the right of plaintiff/applicant over the suit plots and had shown the plaintiff/applicant as owner in its record---Appellate Court, however, ignored overwhelming evidence on record and gave a finding which was not sustainable in law at all---Grave injustice had been done by the Appellate Court---High Court observed that the case was a fit one in which the High Court should interfere in exercise of its revisional jurisdiction to undo the miscarriage of justice and obviate the same---Judgment and decree by the Appellate Court was set aside and that of Trial Court restored. [p. 1501] A Abdul Qadir v. Haji Ghulam Qadir 1996 CLC 1216; Muhammad v. Mst. Banuk Naz Khatoon 1989 CLC 1819 and Abdul Jabbar v. Muhammad Latif 1986 CLC 603 ref.
94. K.B. Bhutto for Applicant (in Revisions Applications Nos.157 and 158 of 1996).
95. S.M. Afzal for Respondent No,1 (in Revisions Applications Nos.157 and 158 of 1996).
96. Hidayatullah Ghulam Ali for Respondent No,2 (in Revision Application No,157 of 1996)..
97. Date of hearing: 18th February, 2002.
98. JDUGMENT ' Both the revision applications arise out of same set of facts and therefore, they have been heard together and are disposed of by this single consolidated judgment.
99. ' Briefly stated the common facts are that the applicant filed Suits Nos.262 of 1984 and 578 of 1985 in the Court of First Senior Civil Judge, Karachi (West) seeking declaration that the applicant has possessory title over Plot No,11, Sector 4/F, Orangi Township, Karachi and Plot No,31, Sector 4/F Orangi Township, Karachi. Further, relief was sought to the effect that Sher Muhammad son of Muhammad Akbar and Faqir Muhammad son of Muhammad Akbar (brothers inter se) may be evicted from the possession of respective plots and the possession of the respective plots may be restored to the applicant/plaintiff. Permanent injunction was also sought against defendants Sher Muhammad, Faqir Muhammad or any other person on their behalf restraining them from interfering with the possession and enjoyment of the applicant/plaintiff of the said plots.
100. ' The case of the applicant/plaintiff in both the suits was that he was in possession and occupation of the two plots. Each plot was measuring 101 sq. Yards. The applicant/plaintiff constructed boundary wall and one room over each plot. According to applicant he fell seriously ill in the year 1982 and shifted to Patel Para, where his son and other family members were living. Both the plots were entered in the name of applicant/plaintiff in the Excise and Taxation record and PT-1 were issued in his name. In his absence his two plots were forcibly and unauthorisely occupied by the two brothers namely Sher Muhammad and Faqir Muhammad, the respondents in the present revision applications. They in collusion with K.M.C. Staff got the respective plots regularized in their names. The applicant submitted applications to the K.M.C. For cancellation of allotments in the name of respondents and an inquiry was initiated.
101. ' The respondents Sher Muhammad and Faqir Muhammad contested the suits contending that the suit plots were allotted in their favour by K.M.C. On 28-11-1982 and thereafter they raised construction.
102. ' On the pleadings of the parties, following issues were framed:--Suit No,262 of 1984
(1) Whether plaintiff was in occupation of Plot No,11, Sector No,4/F, Orangi Township and constructed a room and boundary wall over the same?
(2) Whether the plaintiff was dispossessed wrongfully from the said plot by the defendant?
(3) Whether the defendant has any right over the suit plot?
(4) Whether plaintiff is entitled to the relief claimed?
(5) What should the decree be?
103. Suit No,.578 of 1985
(1) Whether the plaintiff is the owner of the suit plot?
(2) Whether K.M.C. Have regularized the plot in favour of defendant vide its Letter No,AD/805/82, dated 28-11-1982?
(3) Whether defendants forcibly occupied the suit plot?
(4) Whether plaintiff is entitled to the relief claimed?
(5) What should the decree be?
104. ' The parties led their respective evidence. All the issues in both the suits were decided in favour of the applicant/plaintiff and both the suits were decreed.
105. ' While deciding Suit 262 of 1984 the trial Court after examining evidence on record which included the evidence of P.W. Abdul Karim Sub Inspector, Excise and Taxation Department, held that the applicant/plaintiff Dawood Shah was residing on Plot No,11 Sector 4/F, Orangi Township at the time of survey and his name in PT-I, was entered on the basis of physical survey. The learned trial Court further held on the basis of evidence on record that the applicant/plaintiff was in possession of the suit plot and the defendant unauthorisely occupied the same. The learned trial Court further observed that the defendant has taken changing versions at different times. He has taken different pleas pertaining to the duration for which he was in possession of the suit plot. Sometimes he claimed the possession for 6 years, and on other occasions for 3 years, 5 years and 13 years. The learned trial Court came to the conclusion that the defendant has fabricated the documents pertaining to his possession. The learned trial Court further held that the regularization letter issued in favour of defendant was cancelled after holding inquiry and the suit filed by the defendant assailing the cancellation of regularization letter was also dismissed. The trial Court ultimately held that the possessory title of the applicant/plaintiff was established and the defendant/respondent was a mere trespasser and was liable to be ejected.
106. ' Likewise, the learned trial Court while deciding Suit No,578 of 1985 held that the evidence of plaintiff's witness on the point of possession of plaintiff/applicant over Plot No,31, Sector '4/F, Orangi Township, had gone unchallenged. It was observed that the defendant in the said suit did not step into the witness-box personally to disprove the possession of the plaintiff and the evidence of attorney of the defendant was full of contradictions. Similar findings were given in this suit also as in the earlier suit. It was held that the regularization letter in respect of .Suit plot was obtained illegally which was subsequently, cancelled and the suit filed assailing the cancellation of regularization was also dismissed. Similar relief was allowed in this suit also as in the earlier suit.
107. ' Being aggrieved with the judgment and decree of the trial Court, the respondent preferred first appeals being Civil Appeal No,77 of 1992 and Civil Appeal No,53 of 1994, respectively. Both the appeals were decided by the same First Additional District Judge, Karachi on 29-2-1996. Both the appeals were allowed, the judgment and decree in both the suits were set aside and both the suits were directed to be dismissed.
108. ' The learned First Appellate Authority framed the following points for determination:- (1). Whether respondent has right over the suit property and entitled for the possession?
(2) Whether the impugned judgment and decree requires interference?
(3) What should the order be?
109. ' The First Appellate Court held that admittedly the suit plots belong to K.M.C. And the title in the suits plots does not vest in any of the parties. It was regularized in the name of respondents Sher Muhammad and Faqir Muhammad in the year 1982 and the said regularization was subsequently, cancelled. On the basis of this material, the' learned First Appellate Court observed that the respondents were in possession of the suits plots and further held that the possession of the applicant/plaintiff over the suits plots was not established. The First Appellate Court further observed that the plaintiff/applicant produced K.M.C. Receipts for the period from 1984 to 1987 but the suits were filed prior to the said date. The First Appellate Court further observed that Dawood Shah, did not file any F.I.R. Or complaint against respondents tor committing trespass by breaking open the lock. The learned First Appellate Court further disbelieved the evidence of tenants inducted by applicant Dawood Shah. The First Appellate Court ultimately came to the conclusion that Dawood Shah had no title when he tiled the suit for possession and that the respondents were claiming title over the suit property on the basis of possession. It was further observed that the suit for recovery of possession can be filed under sections 8 and 9 of the Specific Relief Act. It was further observed that it was not the case of possession under section 9 of the Specific Relief Act and under section 8 of the Specific Relief Act, a person entitled to the possession of specific immovable property may recover in the manner prescribed by Code of Civil Procedure. It was held that under section 8 of the Specific Relief Act, the Court can grant possession to the person having title only and there is no law whereby a person being in possession can acquire a title except in case of adverse possession. It was further held that it was not a case of adverse possession and the suit property was owned by K.M.C., therefore, the parties can approach the K.M.C. For allotment and lease in their favour and should seek redress from K.M.C. The First Appellate Court observed that the above legal position escaped the consideration of trial Court with the result that the trial Court did not decide the issues correctly. The findings of the trial Court on Points Nos.1, 2 and 4 were reversed and the Points Nos.1 and 2 framed for determination by the First Appellate. Court were decided in affirmative. The judgment and decree of the trial Court in both the suits were set aside and both the suits were dismissed.
110. ' Being aggrieved with the judgment of the First Appellate Court, the applicants have preferred these revision applications.
111. ' By consent, the learned Advocates for the parties have submitted their written arguments. The learned counsel for the applicant has submitted that the learned First Appellate Court, has totally ignored the evidence available on record and thus, it is the case of non-reading of the material evidence which has rendered the findings of the First Appellate Court, to be illegal and perverse. He has submitted that there is undisputed evidence on record that applicant Dawood Shah was in possession of both the suit plots. This fact is established with the evidence of official witnesses who have stated that physical survey was conducted and applicant Dawood Shah was found in possession of the suit plot. Such entries were made in the record of Excise and Taxation Department and on the basis of physical survey, P.T-I. Was issued in favour of applicant Dawood Shah. He has further submitted that it is also undisputed fact that the respondents got the suit plots regularized on the basis of misstatement and misdeclaration. On the application of applicant Dawood Shah, inquiry was initiated and it was proved that Dawood Shah was in possession of the suit plots and the respondents had fraudulently obtained the regularization order from K.M.C.
112. Which were cancelled after issuance of show-cause notice to the respondents. It is also undenied fact that the respondents filed the suit assailing cancellation of regularization in their favour but the suits were dismissed and subsequently, the K.M.C. Granted leases in favour of applicant Dawood Shah. The respondents contested the matter up to the High Court but were not able to obtain any relief. The learned counsel for the applicant has vehemently argued that the First Appellate Court, has ignored all this material available on record and it is a case of total non- reading of evidence. He has submitted that the impugned findings of the First. Appellate Court are totally perverse and against the material available on record. He has further contended that the observation of the First Appellate Court, that the title of the suit plots belonged to K.M.C. Is also against the material available on record. He has contended that documents on record fully establish that the applicants were in possession of the suits plots when the physical survey was conducted and subsequently, leases of the suit plots have been granted in favour of the legal heirs of the applicant Dawood Shah. He has further submitted that the leases in favour of the legal heirs of Dawood Shah are subsisting and have not been challenged by anyone with the result that the entitlement of the applicant Dawood Shah and through him in favour of his legal representatives is without any cloud. The learned counsel has forcefully argued that the First Appellate Court's order being totally illegal and perverse is liable to be set aside.
113. ' The learned counsel for the respondents is not able to rebut any contention raised by the learned counsel for the applicant. His main contention is that the findings of the Appellate Court, should not be interfered by this Court in exercise of revisional jurisdiction. In support of his contention he has placed reliance on the following judgments:--
(1) Abdul Qadir v. Haji Ghulam Qadir 1996 CLC 1216 (Karachi),
(2) Muhammad v. Mst. Banuk Naz Khatoon 1989 CLC 1819 (Quetta) S.B. And
(3) Abdul Jabbar v. Muhammad Latif 1986 CLC 603 (Lahore) S.B.
114. ' A perusal of the above judgments shows that they are of no help to the respondents. In the case of Abdul Qadir (supra), a learned single Judge, has held that in the event of conflicting judgments of two Courts below, findings recorded by Appellate Court should ordinarily be preferred to findings of trial Court unless same was not supported by legal evidence or was based on surmises and conjectures. However, after giving this proposition of law, the learned single Judge held that, in the cited case, the evidence on record clearly indicated that Appellate Court had misdirected itself by taking different view from the view taken by trial Court and committed a gross error by misappreciating evidence adduced by parties. Appellate Court by adopting a view not supported by material on record had committed jurisdictional error of law thereby causing gross injustice which earnestly deserved interference by High Court in exercise of its revisional jurisdiction in order to do substantial justice and to obviate miscarriage of justice. The revision application was allowed by the learned single Judge of this Court and the appellate decision was set aside while the judgment of the original Court was restored.
115. ' In the case of Muhammad v. Mst. Banuk Naz Khatoon (supra), learned single Judge of the Quetta High Court observed that when reasoning arrived at by Appellate Court were sound and plausible, normally interference in the appellate Judgment was not warranted in revisional jurisdiction of High Court. There can be no cavil to the proposition of law. However, in the present case, the findings of the First Appellate Court are totally perverse and suffer from misreading of material available on record and, therefore, the principle is not applicable.
116. ' In the case of Abdul Jabbar v. Muhammad Latif (supra), learned single Judge of the Lahore High Court held that the view taken by First Appellate Court after scrutiny of plaint being not arbitrary, shall not be interfered with in exercise of revisional jurisdiction. I totally agree with the view of the learned single Judge of the Lahore High Court, but the principle is not attracted to the present case.
117. 'After careful examination of the material available on record I am constrained to observe that the observations made and the findings given by the First Appellate Court are so perverse that it is totally shocking to the judicial conscience. The trial Court had considered the entire material available on record and had rightly held that the K.M.C. A to whom the subject plots belonged had accepted the right of plaintiff/ applicant over the suit plots and has shown the plaintiff/applicant as owner in its record. The First Appellate Court, however, ignored overwhelming evidence on record and gave a finding which is not sustainable in law at all. A grave injustice has been done by the First Appellate Court. And therefore, I am of the considered opinion that it is a fit case in which this should interfere in exercise of its revisional jurisdiction to undo the miscarriage of justice and obviate the same.
118. ' Consequent to the above discussion, the First Appellate judgment and decree in both the cases are hereby set aside and the judgments and decrees of the trial Court in both the suits are hereby restored. Both the revision applications are allowed with cost throughout.