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Petitioner: SHAISTA ESTATES Ltd. VS Respondent: KARACHI BUILDING CONTROL AUTHORITY, KARACHI JUDGMENT
Court Name: Sindh High Court Judge(s): Syed Haider Ali Pirzada, Abdul Qadeer Chaudhry Title:SHAISTA ESTATES Ltd. vs KARACHI BUILDING CONTROL AUTHORITY, KARACHI
JUDGMENT
Reported As: 1986 MLD 2987 Result: Suit decreed Judgment JUDGMENT ' ABDUL QADEER CHAUDHRY, J.--This petition has been filed on the following facts. ' The petitioner is an owner of a plot of land bearing No,G-7 situated on the main Clifton Road, in Block No,9, Scheme No,5, Clifton, Karachi admeasuring 6921.66 square yards. Originally there were two plots bearing Nos.G-7 and G-8 which were amalgamated into one plot. A lease of 99 years has been executed in favour of the petitioner. Annexures P-1 and P-2 are copies of the registered lease deed, dated 5-3-1980 and amalgamation order, dated 8-9-1979. The respondent No,1 is vested with the power to regulate planning, quality of construction and building control. The petitioner decided to demolish the two existing structures on his plot No,G-7 and raised multi-storeyed building thereon. The petitioner applied to the respondent No,1 for permission for commercialisation of the said. Plot and submitted necessary documents. Petitioner's application for commercialisation was approved and the petitioner was required to deposit a sum of Rs,27,68,664 by way of commercialisation charges and Rs,1,38,434 as Town Planning Fee. On 27-3- 1984 the petitioner accordingly deposited the two amounts. Thereafter, the respondent No,2 issued no-objection to the petitioner's request for commercialisation of the said plot through his letter, dated 21-4-1984 with the following conditions: (1) The prevailing rules of G.C. Category of Scheme No,5 shall be applicable. (2) Required car-parking will have to be provided within the plot. (3) Compulsory open space Arcade should be left as marked on the plan. (4) Building plan should got be approved from Karachi Building Control Authority. (5) No opening of any kind shall be allowed towards plot No,G/6.
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' On 28-5-1984 the respondent No,2 issued a letter Annexure P/8 which reads as follows: "As per instructions of the competent Authority the letter of commercialisation issued for the abovementioned plot vide this office Letter No,CF/PC-7/MPEC/559, dated 21-4-1984 is hereby suspended." ' The petitioner requested the respondent to withdraw this letter. Finally respondent No,1 granted permission to the petitioner on 21-11-1984 to demolish the building situated on the said plot No,G-7. According to the petitioner he completed the demolition of the two buildings on the said plot and approached the respondents for withdrawal of the purported suspension but having failed to get the grievance redressed from the respondents the petitioner has filed this Constitutional Petition. I. 2. The respondents 1 and 2 in their counter-affidavit have admitted that on the main road of Clifton some plots have been commercialized. It has been stated that in the present case neither building plans have been submitted by the petitioner nor any building plans have so far been approved. The respondent No,3 admitted that Deputy Controller of Buildings (Planning and ControI), Karachi Building Control Authority allowed commercialization of the plot in question but later the same was suspended. This respondent has adopted the counter-affidavit filed on behalf of respondents 1 and 2. 3. We have heard the learned counsel for the parties. A preliminary objection has been taken that this petition is not maintainable as it violates Article 279-A, of the Constitution read with Article 15 of the Provisional Constitution Order, 1981. ' In order to appreciate this contention it is first necessary to refer to the order, dated 26-5-1984 stated to have been issued by the Martial law Administrator/Governor of Sind (Annexure X-5). It has been contended that as the order has been passed by the Martial Law Administrator, therefore, this order is immune from the scrutiny of the Court. Article 270-A, of the Constitution reads as under:- "270-A.--(1) The Proclamation of the fifth day of July, 1977 all President's Orders, Martial Law Regulations, Martial Law Orders and all other laws made between the fifth day of July, 1977, and the date on which this Article comes into force, are hereby declared, notwithstanding any judgment of any Court, to have been validly made by competent authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any Court on any ground whatsoever. (2) All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any proclamation, President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever. (3) All President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws in forge immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority. (4) No suit, prosecution or other legal proceedings shall lie in any Court against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made .Or sentences passed in exercise or purported exercise of such powers.
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(5) For the purposes of clauses (1), (2) and (4) all orders 'made, proceedings taken, acts done or purporting to be made by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby. (6) The President's Orders referred to in clause (1) shall not be altered, repealed or amended without the previous sanction of the President. Explanation.--In this Article, "President's Orders" includes "President and Chief Martial Law Administrator's Order", and "Chief Martial Law Administrator's Orders." ' Article 15 of the P.C.O. Is as follows: "15. Validation of Laws, acts, etc.--(.1) The Proclamation of the fifth day of July, 1977, all President's Order, Orders of the Chief Martial Law Administrator, including Orders amending the Constitution ' made by the President or the Chief Martial Law Administrator, Martial Law Regulations, Martial Law Orders and all other laws made on or after the fifth day of July, 1977, are hereby declared, notwithstanding any judgment of any Court, to have been validly made by the competent authority. And shall not be called in question in 'any Court on any ground. Whatsoever and shall continue in force until altered, repealed, reconstituted or amended by the competent authority. (2) All orders made, proceedings taken and acts done by any authority, or by ahy person which were made, taken or done, or purported to have been made, taken or done, on or after the fifth day of July, 1977, in exercise of the powers derived from any President's Orders, Orders of the Chief Martial Law Administrator, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules orders or bye-laws, or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground. Whatsoever: ' Provided that nothing in this clause, shall apply to transactions past and closed. (3) Where a Military Court is established in pursuance of a Martial Law Order made by the Chief Martial Law Administrator, no other Court, including the Supreme Court and a High Court, shall grant an injunction, make any order or entertain any proceedings in respect of any matter of which cognizance has been taken by, or which has been transferred to the Military Court, and all proceedings in respect of any such matter which may be pending before such other Court shall abate. (4) No suit or other legal proceedings shall lie in any Court against any authority or any person for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers. (5) Notwithstanding any judgment of any Court, including any judgment in respect of the powers of Courts relating to judicial review, any Court, including the Supreme Court and a High Court, shall not.-- (a) make an order relating to the validity or effect of any order or Martial Law Regulation made by the Chief Martial Law Administrator or any Martial Law Order made by the Chief Martial Administrator, or a Martial Law Administrator or of anything done, or action taken, or intended to be done or taken, thereunder; (b) make an order relating to the validity or. Effect of any judgment or sentence passed by a Military Court or Tribunal; (c) grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of a Military Court or Tribunal extends and of which cognizance has been taken by a Military Court or Tribunal; or
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(d) issue any process against the Chief Martial Law Administrator or a Martial Law Administrator or any person acting under the authority of either. (6) Every such order, injunction or process as is referred to in clause (5) made, granted or issued at any time before or after the commencing day shall, notwithstanding any judgment of any Court, be null and void and of no effect whatsoever and any proceedings for the making, granting or issue of such order, injunction or process which may be pending before any Court, including the Supreme Court and a High Court, shall abate; and it is hereby declared that any such order, injunction or process shall not be binding on any Martial Law Authority, or civil authority acting under the directions of a Martial Law Authority." ' Sub-Article (1) of Article 15 of the P.C.O. Relates to the making of law and so also Article 270-A, of the Constitution bars the jurisdiction of the Court regarding the Proclamation of the fifth day of July, 1977 all President's Orders, Martial Law Regulations, Martial Law Orders and all other laws made between the fifth day of July, 1977. In the instant case it has not be shown or contended that the order, dated 26-5-1984 (X-5) is in the nature of some Martial Law Order. No Martial Law Order or Regulation has been brought to our notice under which such order has been passed. It is contended that this order would be covered by Article 15(2) of the P.C.O. And Article 270-A, of the Constitution. We are afraid we cannot accept this contention as the order on the basis of which the official respondents have suspended the grant is not covered by any of the order mentioned either in Article 270-A, or 15(2) of the P.C.O. It cannot be immuned from judicial scrutiny. Before taking an objection about the ouster of jurisdiction it has to be shown that the order which is the basis of such ouster must have been passed by the authority under some order or regulation. Unless any Regulation, Martial Law Order or Presidential Order empowers a Martial Law Authority to exercise the authority he cannot pass such an order, and every order is not saved under the umbrella of Martial Law. The Courts have the jurisdiction to examine such order on the touch stone of judicial review. ' Mr. Ali Ahmad Fazeel has made stress on the word 'Order' mentioned in sub-Article (2) of Articles 270-A and 15(2) of the P.C.O. And contended that it includes every order but the word 'order' is not to be read in isolation. It does not mean every order passed by a Martial Law Administrator. The word 'order' cannot be divorced from Presidential Order, Martial Law Regulation or Martial Law Order. If such order has not been passed under any of the aforesaid laws then the ouster of the jurisdiction of the Court as contained in the aforesaid provisions will not apply. The respondents have failed to show that there exist any Martial Law Order which empowers the Martial Law Administrator to issue such direction. Before issuing a direction similar to X-5, dated 26-5-1984 he should have some authority derived from some Martial Law Order and if the law does not empower to make such a direction then the immunity cannot be claimed. ' Mr. Fazeel has referred to the case of Province of the Punjab v. Syed Muhammad Akram Shah. This authority does not apply as in the reported case order of reversion was passed in pursuance of recommendation of Review Board constituted under Martial Law Instruction No,21. ' The next case cited by him is Muhammad Afzal Khan v . Karachi Development Authority PLD 1984 Kar. 114 in which one of us Syed Haider All Pirzada, J. Was a party wherein it has been observed that reliefs claimed if hit by Article 9(6) of the P.C.O. Cannot be granted. In the same judgment it has been observed that the Courts still have the jurisdiction to be satisfied whether the impugned order or action purported to have been passed/taken under a M.L.O. Or M.L.R. Was passed/taken by the authority/person prima facie clothed with the power, which he purported to exercise e.g. An officer neither connected with the administration of the Martial Law nor authorised to act under the relevant Martial Law Order/Regulation or by the Martial Law Authorities in terms of the relevant M.L.O./M.L.R., cannot claim immunity from scrutiny of his order by the Court on the ground that he purported to have passed the order under a M.L.O. Or M.L.R.
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' He next cited 1982 SC MR 375. This authority is also inapt as the vires of the Ordinance was challenged and it was observed that the validity of this Ordinance was not open to question after the promulgation of the P.C.O.,1981. ' He has also referred to Civil Petition for Special Leave to Appeal No,K-78 of 1981 in which leave was granted to consider whether the order of cancellation of the allotment was saved by Article 15 of the P.C.O. 1981. In this case the notice was issued under M.L.0.-34. The case has not yet been disposed of, apart from the fact that the facts are distinguishable. ' On the other hand learned counsel for the petitioners has referred contested by the plaintiff's representative as is evident from his note, dated 28th April, 1975. This representative verified the stock only upto 3,50,000. The plaintiffs sent a notice, dated 4th June, 1974 Exh.6/24 through their Advocate complaining about the attitude adopted by the defendants. The text of this notice would indicate the grievance expressed by the plaintiff "that our clients have now come to know that you have made false declaration in order to secure the cash credit limit of Rs,7,50,000 from our clients as the entire goods are under the lien of Habib Bank Limited". In the concluding para. Plaintiff wrote "that our clients hereby finally call upon you to deposit with them the entire balance outstanding against you in credit account amounting to Rs,7,85,005 with upto date interest from April, 1974 within forty-eight hours of the receipt of this final legal notice failing which we have definitely instructions from our client to take action against you." Two letters were written in reply to this notice which are, dated 12-6-1974 and 8-7-1974 Exhs.6/25 and 6/26. In both these letters evasive attitude was adopted by the defendants. A new element was introduced by defendants Nos.1 to 7 at this stage. It was alleged that defendants had appointed Messrs Aslam. Agency as their agents for selling their products at the plaintiff request; the plaintiff had in turn granted to the defendants the loan facility. The following paragraph from Exh.6/26 would show the thinking of the defendants Nos.1 to 7 at this stage:- "In the events that have happened it appears that your client in collusion with Messrs Aslam Agency is precipitating a situation to our clients' manifest detriment by illegally recalling the advances. In case your clients are now in haste they can, upon the guarantee tendered by Messrs Aslam Agency and accepted by your clients recall the amount in question." On 25th July, 1974 the Advocate of the plaintiff sent a reply to the aforesaid letter and denied that the cash credit facility was granted by the plaintiff-Bank for the 'consideration that the defendants had appointed Messrs Aslam Agency as their selling agents. In this letter complete lack of knowledge was pleaded for the arrangement between Aslam Agency and the defendants and it was positively asserted that the loan facility was a direct and straight transaction between the plaintiff and defendants Nos.1 to 7 and the arrangements between the defendants and the Aslam Agency had no bearing on this loan transaction between the plaintiff and the defendants Nos.1 to 7. This is the background of the case with which the parties proceeded and the litigation started. Plaintiff has filed this suit for the recovery of Rs,9,63,653.23 with interest at 11 per cent from the date of the suit till realisation. This suit has been filed after a notice calling upon the defendants to pay back the loan was duly served on the defendants and their failure to comply with this notice. The main defence of the defendants Nos.1 to 7 is contained in paragraph 6 of their written statement which is as follows: - "6. That the contents of para 6 are not denied. It is, however, submitted that the answering defendants were prevailed upon to grant a sales agency to the defendant No,8. It was in pursuance of the said arrangement that the answering defendants opened an account with the plaintiff-Bank although in the past they had no dealings with the said bank. The cash credit limit was sanctioned in consideration of the answering defendants appointing the
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defendant No,8 as their agent. Since the cash credit limit was given in consideration of the said appointment it was intended to be a continuing limit and was not subject to arbitrary termination. It is, however, submitted that the mala fides of the plaintiff is revealed by the fact that it has not encashed the F.D.R's. Pledged by the defendant No,8 and which are lying with it." There is an unambiguous admission by the defendants Nos.1 to 7 that they have received the loan. Defendant No,8 have also filed a written statement. They have raised certain technical objections. They have denied that the cash credit facility was granted to the defendants Nos.1 to 7 at their request or in consideration of the defendants Nos.1 to 7 having appointed Messrs Aslam Agency as their selling agents. The defendant No,8 have further pleaded that they are discharged because the plaintiff failed to keep vigil over defendant No,l's conduct vis-a-vis the cash credit agreement, dated 15-8-1973 and they committed gross neglect in allowing defendants Nos.1 to 7 to trade the goods hypothecated without realising amount due from defendant No,1 and "because of plaintiff gross negligence as aforesaid the unsecuring defendants rights were seriously prejudiced". Further, it is pleaded that the "plaintiff have allowed the securities to be diminished or varied as averred above. The plaintiff .1-have absolved the guarantor of the liability, if any, on account of their gross negligence and not acting as prudent banker". It is further pleaded that the plaintiff have been negligent in not getting the deed of pledge signed by the defendants Nos.1 to 7 the answering defendants are thus not liable for the amount in suit. ' On these pleadings the following issues were framed:- (1) Whether the suit is misconceived and not maintainable? (2) Whether the plaintiff is in any way concerned and effected by dealings between defendant No,8 and defendants Nos.1 to 7? (3) Whether defendants Nos.1 and 7 liable to pay the plaintiff's amount as borrower and the defendant No,8 as guarantor? (4) Whether the plaintiff is entitled to the suit amount? (5) Whether the claim against defendant No,8 is time-barred? (6) Whether the guarantee is legal and valid for reasons stated in para. 5 of the written statement of defendant No,8? (7) Whether plaintiffs are entitled to avail the security of F.D.R.? (8) What is effect of defendants Nos.1 to 7 failure to transpose hypothecated goods into a pledge as per agreement, dated 15-8-1979? (9) Whether the bank guarantee form was signed by defendant No,8 on the understanding that the same would remain with the plaintiff till the deed of pledge is executed. If so, what is its effect? (10) Whether defendant No,8 are entitled to idemnity and contribution under Rule 176 of Sind Chief Court Rules? (11) Whether the suit is misconceived and not maintainable under Order XXXVII, C.P.C.? (12) Whether the defendants Nos.1 to 7 were prevailed to enter into a selling agency in consideration of the plaintiff advancing to them and, if so, on what terms and to what effect? (13) Whether the advance was intended to be a continued advance? (14) Whether the plaintiffs were justified in not adjusting the Fixed Deposit Receipts in their possession against the claimed amount'? (15) Whether the plaintiffs were entitled to demand conversion of the hypothecation into a pledge? (16) What should the decree be and against whom? ' Parties have led evidence in this case Ghulam Syed-ul-Kaunain Naqvi has been examined for the plaintiff. He has produced promissory note Exh.6/3 cash credit Agreement Exh.6/4 letter of continuity Exh.6/5 statements of accounts Exh.6/6. He also produced other documents. Haji M. Arif Lakhani has been examined on behalf of the defendants Nos.1 to 7. Ashraf All Rasheed has been examined on behalf of the defendant No,8. These witnesses have supported the pleas taken by
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them in their respective written statement. Now I proceed to dispose of these issues in the light of the pleadings and the evidence of the parties. ' Issue No,1 was not pressed by any of the parties. Issue No,2. This issue was argued by Mr. Vasvani counsel for the defendants Nos.1 and 7. It was contended by the learned counsel that the defendant No,1 obliged the guarantor, defendant No,8 by appointing Messrs Aslam Agency as their selling agents for selling the products on commission. According to the learned counsel this favour was shown to Messrs Aslam Agency , who are sister concern of defendant No,8 on the understanding that defendant No,8 would offer guarantee of the defendants Nos.1 to 7. The learned counsel tried to argue that on account of this favour shown by the defendants Nos.1 to 7 to Aslam Agency the liability of loan was to be discharged by the defendant No,8 and not by the defendants Nos.1 to 7. On the face of it this seems to be a very fantastic assertion for which concrete proof must be produced. No such agreement has been placed on record in support of this contention. Moreover, even if there was such a understanding between the defendants Nos. 1 to 7 and 8 the plaintiff not being a party to such an understanding cannot be non-suited. Nothing has been placed on the record to substantiate this contention. This issue is, therefore, answered in negative. ' Issue No,3 is the most important issue in this case. Plaintiffs have produced all the documentary evidence mentioned above. There is no denial that the amount of loan was not obtained by the defendants Nos.1 to 7 or anything except a sum of Rs,10,000 alleged to have been paid by the defendants Nos.1 to 7 to the plaintiff has been paid. On the top of it by Exh.6/18, dated 8-5-1974 the defendants Nos.1 to 7 have categorically admitted that advance of Rs,7.5 lacs allowed to us had been materialised as per arrangement arrived at between ours and Messrs Aslam Agency and their. Guarantee. The defendant No,1 has led evidence and P.W. 1 Haji Muhammad Arif Lakhani has been examined on their behalf. This witness has categorically admitted that "we have not repaid amount due to the bank. We were not repaying the amount and that is why the bank cancelled our facility and then filed the present suit. The facility was granted to us by the bank sometimes in 1973 or 1974." For purpose of disposal of this issue this is enough to say that the receipt of payment of accepted and it is also admitted that this amount was never returned. As such both the defendants Nos.1 to 7 as principal debtor and…
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