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Petitioner: MULTILINE ASSOCIATES VS Respondent: ARDESHIR COWASJEE and others
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Mir Hazar Khan Khoso, Muhammad Munir Khan Title: MULTILINE ASSOCIATES vs ARDESHIR COWASJEE and others Case No.: Civil Appeal No, 136 of 1993 Date of Judgment:1995-01-22 Reported As: 1995 SCMR 362 Result: Appeal allowed
JUDGMENT
JUDGMENT SAJJAD ALI SHAH, C.J.---This appeal with leave of the Court is directed against the impugned judgment dated 21st January, 1993 of a Division Bench of the High Court of Sindh, whereby the Constitution petition filed by five private respondents herein is allowed, declaring construction of Ground plus Nine Floors on the plot described below as violative of the Karachi Building and Town Planning Regulations and further directing the Karachi Building Control Authority to demolish such construction which, if satisfied, has been raised in violation of the said Regulations. 2. Briefly stated the relevant facts in the background are that the appellants before us, namely, Multiline Associates, are builders and would be referred to hereinafter as such, applied through their attorney Haji Masood for approval of construction of Ground plus Ten-Storey Apartments on Plot No,18, FT-3, Frere Town, Karachi to the Karachi Development Authority,. Said plot measuring 3830 sq. Yards is a KMC tenure residential category plot located at the junction of Gizri Road and Lily Road. The request was for plot ratio of 1:4 whereas the Building and Town Planning Regulations prescribe plot ratio of 1:2 for residential category plot in Frere Town area. However, the Director General KDA stated in his note dated 18th September, 1989 (page 104 of Paper Book 1) that the policy for the approval of high-rise buildings was under consideration of the Government of Sindh and that further action on that proposal could be taken when the Government declared the policy. The proposal was submitted for perusal and further orders. The Additional Chief Secretary (LG) appended his note stating that he was totally against converting residential plots for commercial purposes but since policy of allowing construction of high-rise buildings and commercialisation had been approved by the Chief Minister, this case could be decided in the light of the Wig. The Minister recommended that since so many high-rise buildings were already in existence in that
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area, plot ratio of 1:4 may be allowed and the building plan may be approved. Note of the Additional Chief Secretary is signed on 26th September, 1989 (page 104 of PB 1) and on the next page there is another note showing challan for 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th plus 10th floor at the rate of Rs,65 prepared vide Challan No,27/33541 dated 28th September, 1989 of the amount of Rs, 22,40,550. 3. On 2nd October, 1989 architectural approval of building plan (Ground plus Ten Floors) was obtained (page 147 of PB 1) and on the same date building plan was approved subject to conditions including approval of KMC being the lessor. Vide letter dated 10th October, 1989, the Director Land, KMC rejected the building plan on the grounds; firstly that the area and measurement of the plot did not tally with the office record; secondly that only for residential purposes Ground plus two upper storeys could be constructed; and thirdly that the structure of services of water, drainage, electric and Sui gas shall be disturbed (page 107 PB 1). On 15th October, 1989, the Karachi Building Control Authority issued No-Objection Certificate for advertisement of sale of the flats at "Spring Field Apartments" on Plot No, 18, FT-3, Frere Town Quarters, Karachi and on 23rd November, 1989 advertisements appeared in various newspapers of Karachi for construction of whole structure of Ground plus Ten floors. (Newspapers clippings are at pages 211 to 217 of PB 1). The learned counsel for the appellants stated that the proposed construction as such was advertised on the television also, hence various parties applied and obtained allotments and paid instalments. Thereafter construction started and two years time for handing over the possession was assured. 4. On 26th February, 1990, the Karachi Building Control Authority (to be referred hereafter as KBCA) issued notice questioning the construction on area outside the authorized open space in contravention of the approved building plan. On 5th March, 1990 revised plan was submitted leaving aside seven feet as open space on three sides and five feet in the rear as against requirement of ten feet to be left as open space. On 28th March, 1990 KBCA issued notice, of which explanation was submitted but was found unsatisfactory. On 2nd May, 1990, another notice was issued by KBCA for stopping the construction. 5. On 29th May, 1990, Sindh Buildings Control Ordinance, 1979 was amended by Ordinance II of 1990 inserting subsection (5) in section 6 providing that before the completion of building, Government may, if it is satisfied that the construction of any type of the building or buildings in any area is not in the public interest or is otherwise inexpedient, without notice suspend or cancel the no-objection certificate already issued. Subsection (6) of section 6 further provided that if any order was passed under subsection (5), the matter shall be re-processed by the Authority in accordance with such directions as may be given by the Government. With efflux of time this Ordinance expired and was replaced by Ordinance V of 1990, which was promulgated on 4th September, 1990. Ordinance V of 1990 was subsequently converted into Act VII of 1990 on 23rd December, 1990. On 14th August, 1990 Order was promulgated by the Government of Sindh cancelling no-objection certificates issued between Ist December, 1988 to 5th August, 1990 for construction of high-rise buildings in violation of the provisions of the Sindh Buildings Control Ordinance, 1979 and the Building and Town Planning Regulations. This was followed by a public notice, which was published in the newspapers issued by the KBCA, cancelling no-objection certificates and approval of building plans of about fifty-two plots, list of which was also published but did not include the name of the builders, hence they proceeded with construction. 6. On 5th November, 1990, builders filed Suit No, 1187 of 1990 for declaration and permanent injunction against the KBCA to prevent it from interfering with construction work. It was contended, inter alia, by the builders as plaintiffs in the suit that they had submitted revised building plan on 5th March, 1990, which was to be approved or refused within sixty days and that since there was no response from the KBCA, their revised building plan stood impliedly approved on 5th May, 1990 as
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contemplated under the law. Hence, they were entitled to continue with the construction work, which was interfered with by demolition notices issued by the KBCA on 26th February, 1990 and 28th March, 1990, which were impugned. It is stated that in the said suit filed in the Court of VIIth Senior Civil Judge, Karachi South, interim stay was granted against the KBCA and that stay order remained operative as the same was not vacated or modified, copy of the plaint is at page 218 of PB 1). On 20th January, 1991, respondent No,1 herein (Ardeshir Cowasjee) filed Constitution Petition No, D-76 of 1991 in the High Court of Sindh at Karachi against the builders, KBCA, and the Government of Sindh praying for stopping of unauthorized construction in excess of plot ratio over compulsory open space and beyond the second storey. Alongwith the Constitution petition there was filed a miscellaneous application for interim stay, on which order was passed on 23rd January, 1991 for maintenance of status quo. On 27th February, 1991 Mr. Ismail Merchant, counsel for the builders in the Constitution petition, stated before the High Court that the building had been raised up to 9th floor and the work was to be taken in hand for the 10th floor according to the plan, upon which he relied, but the builders were restrained by the order of the Court from raising any further construct ion and from transferring, selling in any manner or parting with possession of any portion of the property. 7. During the pendency of the Constitution petition before the High Court, the builders submitted an application to the Chief Minister of Sindh on 8th May, 1991 for regularization of the approved building plan stating therein that they had launched the residential project and invested therein huge amounts of money and further described six plots in respect of which no objection certificates had been restored by the Government of Sindh. On this application, the Chief Minister of Sindh approved the regularization of the building plan on 21st August, 1991 and in consequence of which they paid composition fees of Rs,10,26,365 vide Challan No, 41 dated 27th October, 1991 (Page 176 PB 1). 8. Abovementioned order of the Chief Minister was impugned and for that reason request was made for amendment of memorandum of the Constitution petition in the High Court on 14th March, 1992, which was allowed and by consent of the counsel appearing for the parties there the learned Chief Justice gave a fixed date for final hearing and in consequence whereof the arguments were heard and judgment was reserved on 2nd September, 1992 and later on it was re-heard and allowed vide the impugned judgment. 9. There is one other aspect which also requires consideration. Messrs A. Razak Adamjee and Abdul Hamid Adamjee filed Suit No, 570 of 1988 against Messrs Datari Construction Company and Karachi Building Control Authority for declaration and injunction wherein the prayer was not to allow commercialisation of the plot in Clifton area as it would create a public nuisance and permanent injunction for restraining defendant No, 1 in the suit from erecting a multistoreyed building was sought. Mr. Naeemur Rehman appeared for the plaintiffs in the suit which was decreed with direction that defendant No,1 shall not construct beyond the hollow plinth plus five storeys. Permanent injunction was also granted restraining defendant No,1 from erecting multistoreyed building which would cause public nuisance. Against the decree in the suit, High Court Appeal No,55 of 1991 was filed; which was allowed and impugned .Portion from the judgment and decree was set aside as being contrary to the evidence on the record and it was held that as the Karachi Building and Town Planning Regulations were to be published in the Gazette as contemplated under section 16 of the Karachi Development Authority Order 5 of 1957 and that as it was not done, no reliance could be placed on them as they could not be considered to have come into effect. Mr. Naeemur Relunan appeared as counsel in HCA 55/91; which was allowed vide judgment dated 31st December, 1992. In Constitution Petition No,D-76/91, judgment was announced on 21st January. 1993 and notice informing about announcement of the judgment was issued by the office of the High Court on 18th January, 1993 and was received on behalf of Mr. Sharifuddin
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Pirzada, who appeared for the builders in the Constitution petition in the High Court. It was submitted before us on behalf of the builders that in such circumstances it was incumbent upon the counsel appearing for respondents before us to have intimated the Division Bench of the High Court, seized of Constitution Petition No,D-76/91, that there was already finding by one other Division Bench of the same High Court to the effect that the Regulations were not in force and that if a contrary view was to be taken on that point, then the matter should have been referred to the Chief Justice before announcement of the judgment for constitution of a larger Bench. 10. Petition for leave to appeal was filed in this Court against the judgment dated 21st January, 1993, whereby the Constitution petition has been allowed, and leave has been granted to consider, inter alia, the following questions: "(1) Whether the Division Bench was bound by the earlier judgment of its own Court delivered in H.C.A. No, 55 of 1991? (2) Whether the respondents had the locus standi to file the writ petition? (3) Whether there were any building regulations in force in the area and, if so, whether the building plans of the appellants conformed to these Regulations? And (4) Whether the Chief Minister or respondent No,2 could permit deviation from the Regulation, if any, or compounding thereof?" 11. After grant of leave, an application under Order V, Rule 2 of the Supreme Court Rules was filed on 14th May, 1994 at Islamabad by Mr. Abdul Hafeez Pirzada; which was registered as CMP 56-K of 1994 and taken up for consideration at the time of hearing of the appeal. He was heard by us in connection with that application at the time of the hearing of the appeal. He submitted that he had filed that application on behalf of fourteen transferees of the flats, constructed in the disputed building, who had paid huge amounts of money and, therefore, had vested right in acquiring possession of those flats. Further that they should have been impleaded as necessary parties in the proceedings of the Constitution petition before the High Court, which was not done. He further submitted that his clients came to know about the proceedings in the Supreme Court, and, therefore, have prayed to be impleaded as necessary parties because they have paid money on the representations of the Government of Sindh and advertisements of the builders in the newspapers that their project of construction was strictly in accordance with the law, rules and regulations and no objection certificate had already been obtained from the concerned authority. 12. In support of the claim documents have been filed which are contained in the paper book (part 3) and those documents include list of allottees, provisional allotments, payment receipts, extract of property, forms of Sanad and deeds of conveyance. At page 3 of the paper book, Part-3, there is list of allottees which shows various amounts paid by such allottees on different dates. Provisional allotment orders have been issued by the builders in favour of such transferees which are placed on the record.. Mr. Abdul Hafeez Pirzada further contended that in view of such documentary material in respect of the claim it is a fit case for interference by the Supreme Court to allow the transferees to be impleaded as necessary parties on the basis of their right which has accrued to them as vested right and that this Court should overlook the procedural technicalities in order to do complete justice as contemplated under Article 187 (1) of the Constitution. In support of the proposition reliance has been placed by him on the case of Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678) in which it is held that legal formalities and technicalities of procedural law should not be allowed to defeat ends of justice unless such technicalities offer insurmountable hurdles. In that case section 3 of Jammu and Kashmir (Administration of Property) Ordinance (III of 1961) came up for consideration in conjunction with section 115 of Civil Procedure Code and it was held that although ordinarily, Courts had declined to exercise the revisional jurisdiction where an alternative remedy was available, yet
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this was not an inflexible rule to be rigidly followed and a departure could justifiably be made if required by the circumstances of the case. 13. Mr. Abdul Hafeez Pirzada also cited the case of Ch. Zahur Ilahi, MNA v. The State (PLD 1977 SC 273) in which "complete justice" as mentioned above in Article 187 of the Constitution has been examined in detail and it is held that "doing complete justice" is indeed a very comprehensive term and means doing real and substantial justice without being fettered by legal formalism, so that paramount interests of justice are not allowed to be sacrificed at the altar of mere technicalities. Reliance was also placed on the case of Mst. Safyya and another v. Muhammad Rafique and 6 others (PLD 1993 SC 62) in which Articles 187 (1) and 185(3) of the Constitution were examined in conjunction with section 25 of the Contract Act and it has been held that this Court has power to issue such directions, orders or decrees as may be necessary to do complete justice in a lis pending before it. 14. When asked why transferees did not join proceedings in the High Court, Mr. Abdul Hafeez Pirzada stated that the proceedings were commenced in the High Court in the Constitution petition in the year 1991 and transferees should have been joined by the writ petitioners who had knowledge that flats were constructed as they claimed to be the immediate neighbours in the vicinity of the plot on which building in question was being constructed and letting out of the flats was advertised in the newspapers and television. When asked as to why the builders did not ask the Court to join the transferees as necessary parties, Mr. Abdul Hafeez Pirzada replied that if they had done so their business interest would have been affected adversely because the transferees would have insisted for cancellation of the allotments and refund of money. 15. Mr. Naeemur Rehman, learned counsel for the private respondents, vehemently opposed the prayer of the transferees of flats for their impleadment as necessary parties on two grounds. Firstly, that the Constitution petition was filed by his client as pro bono publico, and secondly that the documents produced in support of the claim of transferees did not show that they are the genuine transferees because all such documents are issued by the builders, who are interested party, hence there appeared to be collusion between the two. He also submitted that the transferees had not given any satisfactory explanation for not joining the proceedings in the High Court and no such documents have been produced by them to show that they are the genuine transferees as they claim to be. 16. After considering the contentions raised on behalf of both the parties, we feel inclined to agree with Mr. Abdul Hafeez Pirzada that the transferees of the flats have paid huge amounts in instalments for purchase of the flats which fact is fully documented as receipts and other documents have been produced. We do not see any plausible reason for builders to fabricate such documents to substantiate claim of transferees because evenotherwise their case stands on the basis of their own contention that their project of construction has not violated any rules or regulations. We are also satisfied that satisfactory documentary evidence has been produced to show that the transferees have acted on the representations made by the Government of Sindh and the builders to the effect that construction was according to law and rules and that no- objection certificate had been obtained. We, therefore, grant the prayer in CMP 56-K of 1994, which is hereby allowed. 17. This Court has granted leave, inter alia, on four grounds which are mentioned above. First ground is whether the Division Bench of the High Court of Sindh which delivered the impugned judgment in Constitution Petition No,D-76/91 was bound by earlier judgment of equal Bench of the same Court, which has held specifically that the Karachi Building and Town Planning Regulations are not in force. There is no dispute about the fact that in the impugned judgment a contrary view has been taken and if it was found to be necessary to do so, then proper course would have been request to be made to the learned Chief Justice for constitution of a larger Bench instead of giving
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conflicting finding; which is bound to create confusion. Civil Appeal 556/93 is pending in this Court, record of which shows that the judgment impugned therein was delivered by the Division Bench of the Sindh High Court on 31st December, 1992 and Mr. Naeemur Rehman appeared as one of the counsel there, who was also counsel in Constitution Petition No,D-76/91 in which judgment was announced on 21st January, 1993. Our attention has been drawn to page 300 of PB 1 at which can be found photostat copy of the notice issued in CP D-76 of 1991 intimating 21st January, 1993 as the date for announcement of the judgment and such notice was issued on 18th January, 1993 addressed to Mr. Sharifuddin Pirzada. Mr. Naeemur Rehman also did not seriously contest this point to the effect that he had no knowledge of judgment in HCA 55/91, which was announced on 31st December, 1992. Nor did he say whether it was his duty or not to bring this fact to the notice of the Division Bench which announced the judgment later in point of time on 21st January, 1993. Since there is no serious contest between the learned counsel on this point as far as factual aspect is concerned, we should not detain ourselves any longer on the factual side and go straight to the legal aspect and case-law for the reason that dates of pronouncement of the judgments mentioned above are not in dispute as per record. There is also no dispute between the counsel of the parties before us on the point that validity of the Regulations mentioned above was a live question in both the proceedings. 18. In such circumstances, legal position which emerges is that the second Division Bench of the High Court should not have given finding contrary to the findings of the Ist Division Bench of the same Court on the same point and should have adopted the correct method by making a request for constitution of a larger Bench, if a contrary view had to be taken. In support reference can be made to the cases of the Province of East Pakistan v. Dr. Azizul Islam (PLD 1963 SC 296) and Sindheswa r Ganguly v. State of West Bengal (PLD 1958 SC (Ind.) 337), which is a case of Indian jurisdiction. We, therefore, hold that the earlier judgment of equal Bench in the High Court on the same point is binding upon the second Bench and if a contrary view had to be taken, then request for constitution of a larger Bench should have been made. 19. Second question for consideration in the leave granting order is whether the respondents had the locus standi to file the writ petition. It is submitted before us by the learned counsel for the appellants that the private respondents had no locus standi to file the writ petition in the High Court. Map of the plan of Frere Town and Bath Island quarters prepared by the KMC, was placed before us for perusal in support of the contention. Addresses of the writ petitioners are mentioned in the memorandum of the writ petition, filed in the High Court, and memorandum of the petition filed in this Court. Ist writ petitioner, Ardeshir Cowasjee, is shown as residing at 10-Mary Road Frere Town, Karachi. Second writ petitioner,. Ardeshir Dalal., is shown as residing at 4-A, Mary Road, Frere Town, Karachi. Third writ petitioner, Ahmed Mahmud, is shown as residing at 2-Mcneil Road, Frere Town, Karachi. Fourth writ petitioner, Habib, is shown as residing at 4-Khaliquzzaman Road, Frere Town, Karachi. Fifth writ petitioner, Ronnine Byramji, is shown as residing at 11-B, Mcneil Road, Frere Town, Karachi. Ardeshir Cowasjee has acted as attorney of writ petitioners two to five. In the map, mentioned above, plot upon which disputed construction is being made is shown as Plot No, 18 in F.T. 3 along side Gizri Road. Other sectors, such as, F.T.1, F.T.2 and F.T.4 are also shown in the map. In- between F.T3 and F.T.4, there is Clifton Road, and writ petitioner No,1, Ardeshir Cowasjee, resides at- 10-Mary Road; which is at the other end of F.T.4, sufficienty away from the disputed building in F.T3. Likewise, writ petitioner No,2 also resides on Mary Road in the neighbourhood of. Writ petitioner No,1; sufficiently away from the disputed building. Writ petitioner No,3 resides in F.T.2 on Mcneil Road across Gizri Road, which is also far away from the disputed building. Writ petitioner No,4 resides at 4- Khaliquzzaman Road, and the name of Khaliquzzaman Road is not mentioned in the map, but from location it appears that this address is at a short distance from the disputed building across Gizri Road. Writ Petitioner No,5 resides on Mcneil Road, which is also away from the disputed
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building. It can be said that writ petitioner No,3 is a close neighbour but not other writ petitioners, who are residing at a sufficient distance. This is a disputed question of fact. Question arises that if they were immediate neighbours and live in close proximity of the disputed building, then their rights of easements would have been affected, and in such circumstances, they could have filed suits for enforcement of their rights of easement. It is submitted before us that in fact writ petitioners 1, 2, 4 and other neighbours filed Suit No,411 of 1990 for declaration and injunction against the construction of high-rise building of eleven floors on…
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