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Petitioner: Mrs. ALBAD'SA and others VS Respondent: Mrs. NAHEED PABANI and others
Court Name: Sindh High Court Judge(s): Khalid Ali Z. Qazi Title: Mrs. ALBAD'SA and others vs Mrs. NAHEED PABANI and others Case No.:C.M.A. No, 2783 of 2006 in Suit No,465 of 2006 and C.M.A. No,4276 of 2006 in
B Suit No, 724 of 2006 Date of Judgment:2008-02-01 Reported As: 2008 YLR 738 Result: Applications dismissed Judgment ORDER ' KHALID ALI Z. QAZI, J.---By this common order I propose to dispose of C.M.A. No,2783 of 2006 in Suit No,465/2006 and C.M.A. No,4276 of 2006 in Suit No, 724 of 2006 both under Order XXXIX, rules 1 and 2, C.P.C. Filed by the plaintiffs seeking restraining orders against defendants from raising the construction till final decision of both suits on Plots Nos.218 and 185/1 Garden East Karachi, respectively. ' Brief facts of the case requisite for disposal of these applications are that in Suit No,465 of 2006 plaintiff No,1 is resident of 224/2 Garden East Karachi, plaintiff No,2 is resident of 293 Cruz Road Garden East Karachi and plaintiff No,3 is resident of 65 Chestnut Street, Garden East Karachi and in Suit No 724 of 2006 plaintiffs Nos.1 and 2 are residents of plot GRE-185 Emerald Street Garden East, are all the owners or residents of property located in an area notified under the Sindh Town Planning Act, 1915 as Garden Quarters, Karachi. ' In Suit No, 465 of 2006 the defendants Nos.1 and 2 are the joint owners of the Plot No,218 Garden East Garden Quarters, Karachi and in Suit No,724 of 2006 defendant No,1 is owner of plot No,185/1 Garden East Karachi who are constructing a structure on the subject property allegedly in violation of law. ' The defendant No,3 in Suit No,465 of 2006 and defendant No,2 in Suit No,724 of 2006 is the City District Government Karachi operating under the provisions of the Sindh Local Government Ordinance, 2001 and is the authority appointed under the Sindh Town Planning Act, 1915 to carry out all the actions under the provisions of said Act.
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' The defendant No,4 in Suit No,465 of 2006 and defendant No,3 in Suit No,724/2006 is the authority appointed under section 4 of the Sindh Buildings Control Ordinance, 1979 and is responsible under the Sindh Buildings Control Ordinance, 1979 for the buildings control within the. Province of Sindh. ' The defendants No,5 in Suit No,465 of 2006 and defendant No,4 in Suit No 724/06 is the Government of Sindh who are the lessors of the subject property and overall responsible for town planning within the Province of Sindh. The defendant No,5 has under the provisions of the Sindh Town Planning Act, 1915 delegated the functions of Town Planning within the area known as Garden Quarters to the defendant No,3 under the provisions of the Sindh Town Planning Act, 1915. ' That the defendants Nos. 6, 7 and 8 are responsible for the provision of amenities i.e, electricity, water and sewerage and natural gas for the city of Karachi. ' That the defendant No,9 is responsible for the registration of all documents in respect of the transferring of an interest in immoveable property in Karachi. 2. In support of injunction application in Suit No, 465/06 plaintiff No,3 Ishrat Alvi filed his affidavit on 17-4-2006 in reply Amir Ali Pabani filed counter affidavit as attorney of defendants Nos.1 and 2 on 3-5-2006. The plaintiff No,3 also filed rejoinder to the counter-affidavit filed by Amir Ali Pabani. Mr.Mushtaq Ibrahim Soomro, Deputy Controller Building KBCA filed counter affidavit on 23-5-2006. 3. In support of C.M.A. No,4276 of 2006 in Suit No,724 of 2006, the plaintiff No,1 filed affidavit on 29-5- 2006. In reply Tahir Nisar Deputy Controller KBCA filed counter affidavit on 9-9-2006 and Zakaria Usmani filed his counter affidavit on behalf of defendants Nos.1 and 9. Plaintiff No,1 filed rejoinder to counter affidavit of defendants Nos.1 and 9 on 29-9-2007. The defendant KBCA and private defendants also filed their written statements on 26-9-2007. 4. Mr. Abdur Rehman learned counsel for the plaintiff contended that the plaintiffs reside in an area that was planned by the Karachi Municipal Corporation learned counsel further states that the predecessor-in-interest of the defendant No,1 under the Sindh Town Planning Act,1915 and was notified in the Bombay Government Gazette. Learned counsel stated that annexure C/1 is a copy of the Form of Lease for Built on Plots, Garden Quarter and Annexure C/2 is a copy of the document drawing up the Final Scheme as required under the Sindh Town Planning Act, 1915 and Annexure C/3 is a circular dated 29 July, 1938 clarifying that only a ground 1 structure was permitted, in the whole of Garden Quarters. Learned counsel states that Annexure C/4 is a notification of the Deputy Commissioner South dated 1st September, 1988 which again confirms that no structure greater than ground +1 could be raised in the entire area of Garden Quarters. Learned counsel contended that the documents marked Annexure C/4 clarified in the final scheme which reads as under:- 6. The maximum area on which buildings may be erected shall be one- fourth of the entire plot. 7. Out Lawrence Road from Pad Shah Road to Moorad Khan Lane Buildings upto a depth of 35 feet shall be allowed to build on the alignment line of the road fixed by the Municipality on all other roads no building or portion of a building other than compound walls or entrance gates shall be erected within 15 feet of the boundary. In case of plots having more than one frontage the 15 feet shall apply on the main road or the more important road . The minimum distance from the other boundaries of the plot to the building line shall be at least 10 feet. 8. No building other than Dwelling Houses with appurtenances thereto shall be erected within this area provided that the Local Authority may permit shops on roads of 50 feet width and above. 5. Learned counsel stated that notwithstanding that which is stated in para. 11 of the plaint the defendants Nos.3, 4 and 5 have jointly and severally have approved a plan for construction of 4 storeys on the subject property. Learned counsel submitted that in this regard it may be mentioned that the defendants have managed to obtain an approved plan of the building to be raised on the subject property which discloses a structure of basement (for car parking) and ground 3 storeyed building structure to be erected on the entire plot in direct conflict with the provisions of the Sindh
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Town Planning Act, 1915. The annexure D is a copy of the approved plan indicating the construction to be raised on the subject property. 6. The plaintiffs have shown a photograph of the building as Annexure of the current construction on the subject property in March, 2006. 7. Learned counsel states that it may be noted that the approved plan has been illegally issued by the defendant No,4 as it fails to comply with the provisions of the Karachi Buildings and Town Planning Regulations 2002 as per Regulation. 25-4 FLAT SITES CATEGORY which reads as under: SR. NOFOOT PRINTF.A.RMINIMUM COS FRONTMINIMUM COS SIDESMINIMUM COS REAR 1. 40% 1:2.7520ft(6M) 20ft.(6m) 20ft.(6m)
8. Learned counsel stated that Regulation 25-4 prescribed a minimum Compulsory Open Space(COS) of 20 Feet on all sides whereas as per the plan approved by the defendant No,3,7 Feet COS has been left on either side, 10 Feet at the back and 15 feet in the front. As such the plan having been issued by the authority in violation of the Karachi Buildings. Control and Town Planning Regulations, 2002 is ultra vires and void. Learned counsel stated that Regulation 24-2.4- Detailed plan clearly showing entry, exit gradient of ramp, turning radius, storage spaces, circulation and movement of vehicles etc. Shall be submitted. 9. Mr. Abdur Rehman learned counsel for the plaintiffs stated that no details of the parking have been provided on the subject property the subject plan has been approved by the defendant No,4. Learned counsel further states that needless to say that no such plan has been submitted to the defendants Nos.4 and 5 and nevertheless the plan for the Building stands as approved. Learned counsel urged that Regulation 24-2.5 16 % of the total car parking space will be utilized to -provide space for Motorcycle parking @ 6 Motorcycles and 8 bicycles for every one car. It is stated that no details for motor cycle parking have been provided in the plan whatsoever. ' Learned counsel stated that Regulation 24-6.1 Configuration of parking space under these Regulations shall conform to the minimum standards give which reads as under:-- Table -- 24.1 DESCRIPTION FOR CARFOR MOTOR CYCLE Bay width 8ft.(2:43m) 2.5ft.(0.75m) Bay length 16ft.(4.86m) 6ft(1.8m) Gradient of ramp* 1:7.5 1:8.5 Straight Turning radius (outer) Helical length Turning radius Lot Turning radius24ft.(7.3m) 32ft.(9.7m) 17.5ft.(5.3m) Minimum Ramp and Drive way width Two way traffic 18ft.(5.5m) One-way traffic. 11ft.(3.4m) As per Table-24.2
Angle of ParkingStall WidthStall LengthKerb Length Per car ft (degrees) Ft Ft 0=along kerb 8(2.4m)19(5.8m) 19(5.8m) 30 8(2.4m)16(4.9m) 18(5.5m)
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45 8(2.4m)16(4.9m) 17(5.2m) 60 8(2.4m)16(4.9m) 15(4.6m) 90 8(2.4m)16(4.9m) 8(2.4m)
Stall DepthMin one way driveway WidthLot width how +1 Driveway ft.Lot Width 2 rows +1 driveway Ft. Ft Ft 8(2.4m) 11.5(3:5m) 19.5(6.0m) 27.5(8.4m) 15(4.6m)12(3.7m) 27(8.2m) 42(12.8m) 17(5.2m)12(3.7m) 29(8.8m) 46(14.0m) 18(5.5m)21(6.4m) 39(11.9m) 57(17.4m) 160.9m) 25(7.6m) 41(12.5m) 57(17.4m)
' Learned counsel stated that it may be noted that the defendant No,4 has approved the subject plan illegally as no indication of (i) the bay width or the bay length of the cars is indicated. (ii) no measurements are given as to the width of the driveway in 'respect of one way traffic. (iii) no gradient measurements have seen given in respect of the ramp. ' E. Regulation 3-3.1.1 ' Unless there is anything repugnant in the subject or context, or unless otherwise provided in these Regulations, land development... Or the ..Development of land.. Shall include the dividing of land into plots, the amalgamation of plots, infrastructure development operations in on over or under land making of any material change in the use of land and the creation or termination of rights or access. 3-3.1.2. The following activities or uses shall be taken for the purposes of these Regulations to involve land development as defined herein unless expressly excluded by these Regulations :- (a)... (b) A material increase in the intensity of use of land such as an increase in the number of business manufacturing establishment offices or dwelling units in any structure or on land:- (g) Departure from the normal use for which development permission has been granted or failure to comply with the conditions of a regulation or an order granting the development permission under which the development was commenced or is continued . 3-3.2. General Requirements for Development Permission ' No person or group of persons may carry out land development or permit land development without a valid development permit. The land development shall be in compliance with the requirements, restrictions or conditions of: 3-3.2.1 these Regulations: 3-3.2.2 any applicable detailed plan: 3-3,2.3 any applicable general standards and area standards: 3-3.2.4 any applicable land grant: 10. It is further contended by Mr.Abdur Rehman that as per Regulation 3-3.4 or 3-3.5 Special Development Permits may be granted by the defendant No,2 Mp & Ecd Department provided that the same are not in violation of 3-3.2.2 or 3-3.2.3 or 3-3.2.4 11. Learned counsel stated that the conditions of the area being prescribed as per the Sindh Town Planning Act of 1915 and there being an increase in the material use of land by the construction of Dwelling units, and no such approval having been accorded by the Mp & Ecd Department the
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entire construction having been constructed without approval, the approved plan issued by the defendant No,4 is ultra vires and void. 12. Learned counsel submitted the defendants Nos.3, 4 and 5 are jointly and severally attempting to vary the town planning conditions incorporated in the form of a restrictive covenant contained in the lease of the plaintiffs in violation of law and any construction on the subject property on such a basis is ultra vires and void ab intio. 13. Learned counsel urged that the plaintiffs have acquired a vested right to insure that any variation of the area known as Garden Quarter is at all times done in consistency with the provisions of the Sindh Town Planning Act, 1915 which vested right cannot be taken away except in the manner prescribed by law. 14. Learned counsel contended that without prejudice to paragraph Nos. 19 and 20 the defendants Nos.3, 4 and 5 have jointly and severally altered or varied the town planning conditions of the subject property without complying with the doctrine of structured discretion as clarified by the Hon'ble Supreme Court of Pakistan whereby an authority acting must insure that any decisions made by it are made pursuant to: (i) open plans (ii) open policy statements (iii) open rules (iv)open findings (v) open reasons (vi) open precedents and (vii) fair informal procedure 15. Learned counsel urged that the variations of the town planning conditions being made by the defendant No,2 without complying with the doctrine of structured discretion renders the decision, of the defendant No,2 to vary such conditions as ultra vires and void and any action permitting the construction on the subject property on the basis of such decision of the defendant No 2 is also ultra vires and void. 16. Learned counsel contended that the variation of the town planning conditions jointly or severally being made by the defendants Nos.2, 3, 4, 5 and 6 without complying with the rules of natural justice renders the decision of the defendants Nos. 3, 4 and 5 to vary such conditions as ultra vires and void and any action permitting the construction on the subject property on the basis of such decision of the defendants Nos.2, 3, 4, 5 and 6 is also ultra vires and void. 17. Learned counsel for the plaintiff stated that the decision of the defendants Nos.3, 4 and 5 to vary the town planning conditions is in violation of Article of the Constitution of the Islamic Republic of Pakistan 1973 and is ultra vires and void. 18. Learned counsel urged' that the decision of the defendants Nos.3, 4 and 5 to vary the Town Planning Conditions is in violation of Article 14 of the Constitution of the Islamic Republic of Pakistan 1973 and is ultra vires and void. 19. Learned counsel contended that the decision of the defendants Nos.3, 4 and 5 to vary the Town Planning Conditions as contained in the lease is in violation of Articles 23 and 24 of the Constitution of the Islamic Republic of Pakistan, 1973 and is ultra vires and void. 20. Learned counsel stated that the decision of the defendants Nos. 3, 4 and 5 to vary the Town Planning Conditions as contained in the lease is discriminatory and unreasonable and in violation of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 and is ultra vires and void. 21. Learned counsel contended that the plaintiffs have a legitimate expectation in insuring that no variation occurs to the town planning scheme which legitimate expectation was violated by the defendants Nos.3, 4 and 5 rendering the decision of the defendants Nos.3, 4 and 5 to vary the town planning conditions of the subject property as ultra vires and void.
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22. Learned counsel urged that the defendant No,2 is estopped under the doctrine of proprietary estoppeal from varying the town planning conditions contained in the form of restrictive covenants in the leases executed by the defendant No, 6 in favour of the plaintiffs. 23. Mr. Abdur Rehman learned counsel for the plaintiff also stated that the illegal construction of a multistoreyed building in violation of the terms of the Sindh Town Planning Act, 1915 is tortuous wrong of nuisance and infringement of easementary entitlements. The impugned construction is blatant violations of the terms and conditions of the lease and land grant, and would further increase the strain on sewerage, water, electricity infrastructure facilities and municipal services, which are already scarce for the residents of the area. Learned counsel further stated that such construction shall cause hindrance, congestion, water shortage, sewerage and electricity breakdown. It will also create the unhygienic conditions, obstructions and immense traffic and parking problems. Learned counsel states that moreover the impugned conversion and/or construction shall, constitute several forms of nuisance such as noise, foul smell, pollution of the atmosphere and injury correlative to the properties and interference with its use. Learned counsel further stated that in such circumstances, the peace and tranquility of the low density residential area along with its amenities as well as right of the plaintiffs to the use and peaceful enjoyment of their property in a low density area, is threatened. Learned counsel stated that the right of the neighborhood to the privacy, peaceful enjoyment of their respective residential properties is jeopardized for which the plaintiffs are presently suffering a special loss; which at the present conservative estimate would be over Rs,10 million, in view of noise and dust, constantly being caused and reduction in amenities and in the value of the property. 24. In support of his above argument Mr. Abdur Rehman has referred the following case laws:- (1) 1979 CLC 252; (2) PLD 1982 Karachi 425 rel. 431 paras.7, 8, 9 & 10; (3) PLD 1971 SC 61; (4) PLD 1958 SC 104; (5) PLD 1994 SC 512; (6) PLD 2002 Kar.405; (7) PLD 1993 SC 109; (8) 1993 SCMR 1635; (9) 2006' YLR 2537; (20 sic) Unreported judgment in C.P. No, 549 of 1997 paras. 13 & 16; (21) 1986 CLC 1408; (22) PLD 1996 SC 365; (23) 2001 YLR 1139; (24) Unreported judgment passed in Suit No 860 of 2005; (25) PLD 1959 SC 550; (26) PLD 1981 SC 377; (27) PLD 1981 SC 370; (28) 2006 YLR 2537; (29) PLD 1993 SC 631 and (30) 1998 SCMR 1618. ' The above cases are different and distinguishable on the simple reason that in present case Nishter Road has already been declared as commercial road and more than 144 high-rise buildings have already been constructed in the vicinity most of these buildings have not even observed, compulsory open spaces and the plaintiffs have taken no action in respect of other more than 144 high- rise buildings. 25. Mr. Mansoor-ul-Arfin learned counsel for the defendants Nos.1 and 2 in Suit No,465 of 2006 in reply to the arguments of Mr.Abdur Rehman has advanced his arguments. 26. Learned counsel stated that Ishrat Alvi is not the owner of Bungalow No 65, Chestnut Street Garden East, Karachi. The owner of this bungalow has not chosen to come forward as plaintiff. 27. Learned counsel stated that the plaintiffs Nos. Land 2 have not disclosed if they are the owners respectively of Bungalow Nos.224/2 and 293, Garden East, Karachi or merely residents. The plaintiffs have no right to file the suit. 28. Learned counsel stated that it is clear that the plaintiffs Nos. Land 2 have not instructed filing of the application under Order XXXIX, Rules 1 and 2 as it is clear from para 2 of the affidavit. 29. Learned counsel stated that the defendants Nos.1 and 2 are constructing the structure according to the Buildings Control and Town Planning Regulations 2002 and the KBCA Control Ordinance, 1979 which provide regularization of the plans in case there has been any regularisable deviation from the approved plan. The defendants Nos.1 and 2 have not deviated from the compulsory open spaces as approved in the plans by defendant No,4 such report has also been filed by the Nazir of this Honble Court.
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30. Learned counsel contended that the construction is in accordance with the Karachi Buildings Control and Town Planning Regulations 2002. As far as Sindh Town Planning Act, 1915 is concerned the same does not apply any more. Learned counsel further stated that the Sindh Town Planning Act, 1915 is no more applicable and the same is obsolete. Learned counsel stated that at the time that the said Act was promulgated the population of Karachi must have been hardly around 100,000. Now the population of Karachi is at minimum 14 (M). 31. Mr. Mansoor-ul-Arfin learned counsel contended that the plaintiffs have concealed the fact that a number of buildings in Garden East Area consist of Ground + 4 some of them Ground + 5, some have pent houses, some have basements also, some are Ground+ 6,Ground +7 and Ground + 8. Some of the residential plots have been used for construction of the shops on the ground floor as well as high-rise buildings. Learned counsel states that although there are more high rise buildings, but those which are in the knowledge of defendants Nos.1 and 2 (No,144) are shown in the plan which is explained as under: (a) Violet colour is of those residential plots which carry Ground +4, Ground +5, Ground+ 6, Ground+ 7, or Ground +8, buildings. (b) The plot of the defendants Nos. 1 and 2 is marked in orange. (c) The plot where the plaintiff No,3 is residing is being No,65 is coloured yellow, on the back of which there are three plots Nos.76,77 and 78 pointed out by green and where Ground+8 construction is being carried on. The plaintiffs have allowed and/ or not objected to the amalgamation of those plots. (d) Plaintiff No,2's residence has been shown as 224/2 also marked yellow and it will be noticed that across the road and in front of this, plaintiff's residence there is high rise building on plots Nos.231/1 and 231/2. The building on plot No,231/1 consists of Ground+4 and the building on plot No,231/2 consists of Ground+3. The plaintiffs have acquiesced in such constructions. These buildings have also covered the open spaces and perhaps the COS. (e) The plaintiff No, 2 has given his address as No,293.1n the vicinity and very near to this building, there are high rise buildings 231/1, 231/2 233/3, 233/6, 233/7,289 and 290. The plaintiffs did not object to the construction of all these high rise buildings and they have acquiesced and waived all their rights, if any in this respect. Interestingly, on the plots on the right and on the left of the plots of the defendants Nos.1 and 2 high-rise buildings have been constructed on plots Nos.216,217 and 220. Plot No,220 is Ground +4 and 216 has basement -I- Ground +4 and pent- house and 217 is Ground+4.It is not known as to why none of the plaintiffs objected to the construction of these high rise buildings. 32. Learned counsel stated that the plaintiffs are contending that because of the building of the defendants Nos.1 and 2 entire area is being destroyed. They have not explained as to why the entire area has not been destroyed by earlier 144 high-rise buildings in Garden East, although the defendants Nos.1 and 2 do not admit these allegations of the plaintiffs. Learned counsel denied that the plaintiffs have any prime facie case. Learned counsel further denied that the construction is being carried on in violation of any law. 33. Learned counsel stated that the plaintiffs have failed to explain as to what happened to the balance of convenience which they allegedly claim is in their favour, when all the above 144 high rise buildings mentioned above had been constructed. Learned counsel stated that most of these buildings have not even observed COS. The allegations of running away of the defendants is denied. Learned counsel stated that the defendant No, l's residential address is 13/B Fidai Cooperative Housing Society Garden East. However the defendant No, 2 is living m Clifton. 34. Learned counsel stated the application under Order XXXIX Rules 1 and 2 is mala fide, without any basis and harassm ent to the defendants Nos.1 and 2 and is liable to be dismissed.
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35. Learned counsel stated that the defendants Nos.1 and 2 are joint owners of plot No,218 Garden East Quarters, Karachi. However learned counsel denied that. All structure on the subject property is in violation of any law or the Town Planning Regulations 2002. As far as the Sindh Town Planning Act, 1915 is concerned; the same is no more applicable. The conditions of the city have changed tremendously over the last 94 years and the town planning had been done and is being done and the construction of the buildings are regulated under the Sindh Buildings Control Ordinance,1979 and the Town Planning Regulations 2002. Sindh Town Planning Act, 1915 is no more applicable. The question of defendant No,3's authority under the Sindh Town Planning Act,1915 does not arise. 36. Mr. Mansoor-ul- Arfin learned counsel denied that delegation of functions of town planning have been entrusted to defendant No,2. Learned counsel states now the town planning is entrusted to the Karachi Building Control Authority under the…
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