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Petitioner: Messrs BAMBINO (PVT.) LTD. through Director VS Respondent: GOVERNMENT OF SINDH through Chief Secretary, and another
Court Name: Sindh High Court Judge(s): Shabbir Ahmed Title:Messrs BAMBINO (PVT.) LTD. through Director vs GOVERNMENT OF SINDH
through Chief Secretary, and another Case No.: Suit No, 514 and Civil Miscellaneous Application Nos. 2562 and 2910 of 2000 Date of Judgment:- Reported As: 2002 MLD 1673 Result: Order accordingly Judgment ORDER ' By this order I intend to dispose of C.M.As. Nos.2562 of 2000 and 2910 of 2000, filed by the plaintiffs and the defendants respectively. ' The plaintiff through C.M.A. No,2562 of 2000 have prayed for suspension of the operation of Annexure G-1 and G-2 with the plaint on the ground that the same have caused great prejudices, irreparable loss and injuries to them. Annexure-G-1 is a letter dated 8-4-2000 of the Controller of Buildings communicating the withdrawal/cancellation of the approval of the plan for addition and alteration of the building, on Plot No,29 Pr-2, Preedy Quarters (hereinafter referred to as the Bambino Centre), whereas Annexure G-2 is a letter of eve date of Deputy Controller, Design-1, KBCA, communicating the cancellation of NOC issued in favour of the plaintiff for sale/advertisement of the project "Bambino Centre". ' The application is supported by the affidavit wherein it has been averred that the acts of K.B.C.A. To recall/cancel the approved plan for addition/alteration and withdrawal of NOC are mala fide, illegal, without lawful authority, violative of fundamental rights and principles of natural justice. Such orders are liable to be suspended and struck down and that unless the prayers' as made in the application are granted, they shall be seriously prejudiced and shall suffer irreparable loss and injury. It was further averred that the plaintiffs have prima facie case and balance of convenience lies in their favour. ' The second application (C.M.A. 2910 of 2000 under Order 7, rule 11, C.P.C. Read with section 151, C.P.C. Has been filed by the defendants with prayer for dismissal of the suit on the ground that the suit is not maintainable for the reasons--
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(a) that no notice under section 20-A as envisaged in the Sindh Buildings Control Ordinance, 1979 hereinafter called the Ordinance) has been submitted to the defendant No,2; and (b) that the plaintiff having contravened the mandatory requirement of the Ordinance and Karachi Town Planning and Buildings Regulations, 1979, as manifest from the plaint itself the suit is not maintainable. ' The application is supported by affidavit of Khawaja Moeenuddin, Deputy Controller of Buildings (defendant No,2). ' The facts relevant for the purpose of disposal of the present applications are that the plaintiffs are owner of the building known as Bambino Cinema constructed on Plot 29, PR-2, Preedy Quarters, Karachi housing two cinemas namely "Bambino Cinema" and "Scala Cinema", which are being run by the plaintiffs, who are engaged in the business of public exhibited of films/movies since its construction. Apart from the aforesaid Cinema, 60 office premises are in the same building under occupation of Architects, Lawyers, Medical Practitioners. It is case of the plaintiffs that the decade of 1980's had witnessed tremendous downfall in the Pakistan Film Industry due to the projection of videos and electronic media. The city of Karachi had witnessed closure of several cinema houses during the last 20 years. To name few Palace Cinema, Khyayyam Cinema, Majestic, Picture House, Light House, Naz Cinema, Liberty, Paradise Cinema and Relax Cinema. All these cinema houses were replaced by commercial buildings. The "Naz Cinema", which was in close vicinity of Bambino, was demolished in recent past and there now stands a commercial building with the name of "Naz Plaza" having 12 stories with the entire plot having been covered leaving no open space. The case of the plaintiff is that the seating capacity of Bambino Cinema is 997 and in the present economic conditions, it is very rare to get a full house for shows except during Eid Holidays, when the Board "House Full" comes into use by the management. Besides this, in western countries as well as in India and the U.A.E., the film exhibitors are preferring to establish compact/small theatres with upto date facilities, the same is being done to keep pace with the rapid progress in the audio visual technologies. For the aforesaid reason, the plaintiff decided to covert the traditional cinema house into a digital theatre with computerized vision and sound system. To achieve this goal, it was necessary that the seating capacity and inside area of the cinema house should be reduced, which facilitate the installation of digital system and will also reduce the costs of all other necessary equipment. To achieve the above object, the plaintiff in collaboration with M/s. Quality Builders Ltd., decided to carry out work of alterations and modification in the existing building plan of the Bambino. In the month of January, 1999, the plaintiff applied to the defendant No,2 seeking alterations and modifications in the approved building plan and accordingly deposited security fee. The plan was returned with six objections on 3-2-1999 by the defendant No,2. All the objections raised by the defendant No,2 were duly complied with and the addition/alteration plan was re- submitted Which underwent all legal and technical scrutiny required for approval of the proposed building plan. The Deputy Controller of Buildings (Environment Utilities), K.B.C.A., extended no objection certificate for the plan submitted by the plaintiff. All necessary fees and charges were duly paid by the plaintiffs. After thorough scrutiny, the defendant No,2 on 16-3-2000, issued approved plan to the plaintiff. Thereafter, plaintiff also approached K.B.C.A. For issuance of NOC for sale and advertisement of shops in the proposed project "Bambino Centre", which was also issued on 22-3-2000 after completion of all legal formalities. After obtaining approval of the plan and NOC the plaintiff started extensive publicity for booking of shops on the ground/mezzanine floor in the Bambino Centre strictly in accordance with the NOC issued by the K.B.C.A. ' It is the case of the plaintiff that according to the approved plan, some 119 shops are to be constructed on the ground/mezzanine floors reducing the capacity of Bambino Cinema up to first floor. It was absolutely impossible for the plaintiffs or any other builder to demolish the entire cinema and to reconstruct a shopping plaza thereon, as Chambers are already under occupation
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of several tenants, who are still enjoying physical possession of their respective tenements. One of the purposes of constructing shops on the grounds/mezzanine floors is to Keep Bambino Cinema intact, as well as, the vested tenancy rights of third parties, and to introduce digital system therein. At the same time, the plaintiff wants to utilize the vacant part of Bambino Cinema, which will be available to the plaintiff after reshaping of the two Cinemas namely Bambino and Scala. An impression is being created maliciously by jealous competitors that a new project has been introduced in place of Bambino Cinema, which in fact is absolutely incorrect and baseless. The plaintiff has not applied for demolition of the existing structure as would have been required by the Building Regulations in case of demolition and erection of a fresh building. Plaintiffs by their conduct have never attempted nor intended to violate the approved plan or the NOC. ' Further case of the plaintiff is that on 30-4-2000, the defendant No,2 on the instigation of some of the officers of the defendant No,1, issued a show-cause notice threatening to withdraw NOC/approval for additions/alterations plan on frivolous ground, though the objections raised by the K.B.C.A. Were neither relevant nor material for the plan approved. On 6-4-2000 plaintiffs have replied the same. The plaintiffs were awaiting for the opportunity of personal hearing in case any further clarification is needed by the K.B.C.A. But on 9th April, 2000 (Sunday) the plaintiff received two letters from the K.B.C.A. Intimating withdrawal/cancellation of approved plan and cancellation of N.O.C. For sale/advertisement of the project on the ground that the approval/N.O.C. Were obtained on misrepresentation/concealing the facts, though no allegations constituting 4. Misrepresentation or concealment was particularized or attributed towards the plaintiffs, in the show-cause notice (Annexure F-1). No opportunity of personal hearing was afforded to plaintiffs in order to explain so-called misrepresentation or concealment. The act of cancellation/withdrawal of the approved plan for additions and alterations as well as cancellation of N.O.C. For sale/advertisements of the project, according to the plaintiff, are based on mala tide and without lawful authority. Such orders passed by the K.B.C.A. Under pressure from officials of the defendant No,1 are violative of the fundamental rights, as well as, violative of the principle of natural justice. According to the plaintiff, after receipt of approved plan and N.O.C. Several advertisements were published in the leading newspapers/periodicals of the country and in the consequence thereof more than 80% shops were booked by the several allottees. The plaintiffs have suffered great humiliation, embarrassm ent amongst the traders community at the same time have also suffered irreparable loss and injury for the unauthorized and illegal acts of the defendants, The plaintiffs claimed that they are entitled in the law to improve their property in order to achieve maximum monetary benefit by constructing shops as approved by the K.B.C.A. And its denial in any manner amounts to violation of the fundamental rights of the plaintiffs and its directors on account of booking of the shops vested right in favour of the said persons imposes an accrued liability on the plaintiffs to discharge their contractual obligations, breach whereof would be actionable by the third parties. The quantum and measurement of those damages cannot be estimated in monitory terms, the damages being unliquidated and the plaintiffs would be put to irreparable harm. There was no allegation in the show-cause notice that the approved N.O.Cs. Transgressed the limits imposed by any of the building bye-laws or the parent statutes, namely the Sindh Buildings Control Ordinance, 1979. Thus, the defendant No,2 is estopped from cancelling the N.O.Cs. And approved plan and cannot impair vested rights of the plaintiffs on the principle of promissory estoppels. There was no allegation of irregularities or impropriety of the plans and N.O.Cs. Being beyond the building regulations. Defendant No,2 has lost the locus poenitentiae to recall the approved building plan and N.O.C. In absence of any violation of their terms. ' On above facts, the suit with following prayer has been filed:-- "(a) declare that the vested rights acquired by the plaintiff by acting upon the approved building plan and the N.O.Cs. For advertisement and sale granted by the defendant No,2 cannot be
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impaired, the moreso to take retrospective effect; (b) declare that the approved building plan entitling the plaintiff to alter, modify and give a new shape to the existing structure is not in law a building plan for fresh construction and that the plaintiffs are constitutionally entitled to improve their property namely Bambino Cinema/Centre without let or hindrance on the part of the defendants; (c) declare that the cancellation/withdrawal letters, dated 8th April, 2000, issued by the defendant No,2 are mala fide, illegal, without lawful authority and void ab initio; (d) permanently restrain the defendants from action on the withdrawal/cancellation notice, dated 8th April, 2002; (e) restrain the defendants and their agents, employees, attorneys, representatives and/or other person acting under their instructions or guidance from interfering in the lawful construction being raised on the suit property and may be further restrained the defendants from acting upon the above mentioned cancellation/withdrawal orders; (t) mandatory injunction directing the defendants particularly. K.B.C.A. To restore the approved building plan for alterations/additions in respect of the Bambino Centre/Cinema and the N.O.C. Issued by the K.B.C.A. For advertisement of the project; (g) cost of the suit;" ' In opposition to the plaintiffs application for mandatory injunction, Khawaja Moinuddin, Deputy Controller of Buildings has filed his affidavit, wherein the contents of paras. 5, 6 and 7 of the plaint were admitted to the extent that the plaintiff submitted the plan to defendant No,2 to seek alteration of certain portion of Bambino Cinema and deposited scrutiny fee. The plan was approved as per Annexures D-1, D-2 and D-3, which was confined to the portion indicated in yellow. Issuance of N.O.C. Was admitted. The approval for construction of 119 shops and Bambino Centre shown in the approved plan was also approved. It was maintained that there was no requirement under the law for personal hearing. The plaintiff's representation was considered and the same was rejected as stated in Annexures G-1 and G-2 which were issued to the plaintiff. ' With the permission of the Court, the defendant No,1 was allowed to file counter-affidavit to the injunction application and in pursuance thereof affidavit of Muhammad Younus Jaffer, Secretary of the Housing and Town Planning of defendant No,1 was filed stating therein the grounds and reasons for cancellation/withdrawal of the approval and N.O.C., while issuance of notice dated 2- 4-2000 in DAWN. It is maintained that the Government of Sindh, by exercising the power under section 6(5) of the Sindh Buildings Control Ordinance, 1979, the approval has been cancelled, which empowers the Government that before the completion .Of the building, Government may, if it is satisfied that construction of any type of building or buildings in any area, if not in the public interest or is otherwise inexpedient, notwithstanding anything contained in the Ordinance, rules and regulations made thereunder and without notice cancel or suspend the certificate. It was reiterated that since a number of violations had been overlooked/ignored by K.B.C.A.s'. Officers, these omissions were going to cause serious consequences if the said approved plan was implemented. ' The violations are as follows:-- (a) The sub-station provided on the mezzanine floor 14 x 27-1/2 is against the Building Regulation, which requires sub-station to be at the ground floor level on a 20 feet access road/space, that provisions of incoming/outgoing 11KV cables and low-voltage cables in the form of trenches and raceways from the ground floor, oil sump below the transformer, for drainage of flammable oil in case of rupture of the transformer tank, proper ventilation for the equipment heat in the substation, access for the K.E.S.C. To install and service equipment. (b) The proposed plans were not forwarded by the lessor, Sindh Board of Revenue. (c) The access to parking lot is not shown in the approved plan.
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(d) An irregular/illegal half-floor has been constructed at the sixth floor level at some time in the past, was not part of the original approved plans, which has increased the load on the original structure. (e) The loading/unloading spaces for vehicles have not been provided in the plan on the ground floor in terms of Schedule G, Part 4, Article 3 of Regulation, Part II, whereby five loading/unloading spaces of dimension 16-1/2 x 33 each have to be provided so that the public road is not blocked/encroached upon by commercial loading/unloading activities. (f) The K.B.C.A. Has approved plans without structural drawings/N.O.C. For the new six level (ground, upper part, mezzanine/mid, first, second, third building structure (approximately 50' x 80' per level) to be constructed in the existing parking lot, and for the two (mezzanine and first) new structural floor slabs within the cinema auditorium space, as required by Regulations, Part-I, Chapter 2, Articles 9 and 10. (g) The change of cinema auditorium on ground and mezzanine levels and re-planning the same with shops is not properly and clearly shown and described in the drawings. (h) The section of the building shown in the approved plans seems to be technically incorrect and does not co-relate to the plans of the floors. (i) The Cinema Auditorium is allowed on ground floor or first floor only in terms of Part 7 of Schedule G of the Regulation. (j) Parking space requirement has not been calculated/assessed properly. The provisions of only 32 cars has been assessed without taking into account the special car parking requirements for the various types of commercial usage, as provided in Article 4, Schedule G, Part 4 of the Regulation. (k) The lease deed and restrictive covenants/conditions has not submitted as required by Article II of Chapter 2, Regulations, Part-1. (10) The new to be constructed covered area has been under calculated. (m) Two new floor slabs within the cinema auditorium and the new. Other half of the 6th floor have not been included in the new built up area thus reducing the Government fees charged for scrutiny/approval and the withholding taxes paid to the exchequer. (n) 7-1/2 compulsory open space at the rear of the new construction in the parking lot has not been provided in the approved plans. (o) The coloured sales brochure and the media advertisements show and curved projection on the upper floors in the .Centre of the building, which has not been approved in the plans. This projection will overhang the public road in contravention of Article 6(7) (3a) of Schedule G, Part 2, Regulation, 1979. ' Rejoinder affidavit was filed by one of the Directors of the plaintiff-company in denial of all the averments and allegations. It was maintained that the person who has sworn the counter-affidavit is not aware of the real facts and has filed the same on the dictation of people having vested interest. It was maintained that no order under section 6(5) of the Sindh Buildings Control Ordinance has been passed by the defendant No,1 and the order of withdrawal of cancellation of the approved plan and cancellation of N.O.C. Or order passed by the K.B.C.A. Establishes under section 4 of the Ordinance. This order cannot be treated to be the order passed by the Government of Sindh, which is violative of the principle of natural justice and law. Annexures G-1 and G-2 do not reflect and establish that in any manner it was passed either in the public interest or it was found inexpedient. It has not been signed and issued by any of the functionaries in the hierarchy of defendant No, 1. It was also maintained that K.B.C.A. Has not committed violation or ignored the Town Planning Regulations. It was maintained that the objections/allegations have been raised maliciously in order to fill in the lacuna in the defendant's case. None of these objections was ever raised at the time of issuance of show-cause notice and all these facts and circumstances prove
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mala fide in law. It was further maintained that the plans for additions and alterations submitted by the plaintiff and duly approved by the defendant was in respect of ground plus mezzanine floor and no manner any attempt is made by the plaintiff or regularize the 6th floor. 6th floor was constructed much prior to the year 1979. It was maintained that the provisions of Schedule G, Part II are discretionary and not mandatory. These Regulations are to be applied according to different social and economic conditions and keeping in view the area standards as referred in Schedule H of Part II, which are applicable only when new building has been constructed on an open plot and not in the case of additions and alterations. It was maintained that to provide loading/unloading area is required in the cases of industrial concern, manufacturing units and wholesale warehouses and not in a project like that of the plaintiff. Defendant, who has approved several building plans without such requirement it was never objected by the Government, which reflects mala fide and on their part. They have also denied for submission of approval plan consisting of 6 levels. They maintained that as per approved plan car parking space for 42 vehicles which was calculated on the basis of regulations in the following manner:-- ' For every 20 seats of cinema, parking space for one car is essential. The proposed seating capacity consists of 349 seats, which require 18 cars. In case of retailer business place for every 2,690 s.Ft. Covered area, parking of one car is required under the law. The covered area is 35,225 s.Ft. Which requires parking area of 14 cars. Office space is 52083 s.Ft. And according to Regulation every 5,380 s.Ft. Covered area needs one car. In the approved plan the area for this section is measured at 52,083 s.Ft. Which is for 10 cars. According to them parking space in all for 42 cars is mandatory and the same has been provided in the approved plan. It was maintained that restrictive covenent of lease deed is a matter between lessor and lessee and that in no manner K.B.C.A. Is competent to raise these objections. It was maintained that lease of the plot was executed in 1927 and the lessor is not competent to alter the terms of the lease. However, there is no ground for recalling or withdrawing the approved building plan. They have also denied that in any manner there was any attempt on the part of the plaintiff to reduce the scrutiny/approval fee or to withhold payment of any tax. The required compulsory open space is only possible if the entire construction which comprises six storeys is demolished and a new building is proposed to be constructed thereon. Since the plaintiff have obtained permission for the additions and alterations, the question of leaving compulsory open space is absolutely irrelevant. They maintained that at the back of the building there is already a Ramp which leads to parking lot and which comprises of 16 feet. In order to leave COS the entire structure of Bambino Cinema has to be demolished. ' During the arguments, a statement on behalf of the plaintiff was filed on 26-5-2000 without prejudice to the contents of the plaint and counter-affidavit and rejoinder filed by the defendant in order to shorten the controversy and protect the right of some 80 allottees in the Bambino Centre, in the following terms for disposal of the injunction application:-- "(a) That the K.E.S.C. Substation shall be situated on the ground floor facing the main road (Garden. Road) and for that purpose a shop measuring 24.6 feet x 27.5 feet shall be reserved. (b) That compulsory open space requirement shall be met by leaving. 7.5 feet open space in the area comprising of the parking zone in the old plan (current building). (c) That the entrance of the Bambino Cinema shall be located at the first floor with ground and mezzanine floors underneath the entrance gate, while the auditorium will be shaped in a manner declining towards the screen as per sanction plan. (d) That the Scala Cinema will not be shifted to the third floor and will be maintained at the present place, second floor. ' The structure design of the building to be constructed in pursuance of the plan as modified shall be considered and decided by the K.B.C.A. Within 30 days of its submission by the plaintiff.
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' That the plaintiff shall pay such security amounts or governmental dues or fees as it may be liable for in the consequence of the modification and approvals. ' I have heard the learned counsel for the plaintiff and the defendants. ' First I propose to dispose of the application for rejection of the plaint under Order 7, rule 11, C.P.C. ' The provisions of section 20-A of the Ordinance is reproduced for proper appreciation of the contentions raised by the learned counsel as under:-- "20A. No suit shall be filed against the authority or any of its employee in respect of anything done or purported to be done by the Authority or such employee under this Ordinance except after expiration of 60 days next after notice in writing has been delivered to or left at the office of the Authority or employee as the case may be." ' Learned counsel for the defendants contended that the Government has power to withdraw the approval granted , under subsection (1) of section 6 without notice and Government by exercising such power under subsection (5) of section 6 has cancelled the plan and N.O.C. In the public interest, as the same was inexpedient in absence of any service of notice and the suit itself is not maintainable and has placed reliance on for Square Enterprises v. Karachi Buildings Control Authority (PLD 2000 Karachi 161), wherein the learned Single Bench rejected the plaint by observing that the wording of section 20A of the Ordinance…
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