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Petitioner: NAZAZ ALI (Nizar Ali) VS Respondent: KARACHI BUILDING CONTROL AUTHORITY through JUDGMENT
Court Name: Sindh High Court Judge(s): Shabbir Ahmed Title:NAZAZ ALI (Nizar Ali) vs KARACHI BUILDING CONTROL AUTHORITY through
JUDGMENT
Reported As: 2002 CLC 1464 Result: Applications allowed Judgment JUDGMENT ' The plaintiff, a builder and developer by profession acquired two residential Plots of land bearing Nos.44-A, measuring about 1000 sq. Yards and 44-B measuring about 1533 sq. Yds. In Block 6, P.E.C.H. Society. Plot No,44-A was purchased in the name of Nazzar Ali, Nizar All and Mehmood Ali, whereas, Plot No,44-B is owned by Shehzad Akbar, Shehvaz Akbar, Shahbaz Akbar and Mrs. Shehlina Akbar, who have appointed plaintiff as their General Attorney in respect of later plot. The owners of the plots approached defendant No,1 through defendant No,2 with a request of N.O.C. For amalgamation of the above plots, which was forwarded to defendant No,1 for scrutiny. The defendant No,1 issued no objection for amalgamation of aforesaid residential plots vide Letter No,PECHS/P.C.-19/96/449, dated 1-8-1996. The defendant No,3 vide their Letter No,F1(3770)/96-EVI, dated 27-9-1997 issued their no objection to the amalgamation of above residential plots by allotting new number to the amalgamated Plot as No,44-A, Block-6, P.E.C.H. Society, Karachi, measuring about 2533 sq. Yards. The defendant No,2 through their Letter No,PECHS/1380/632/97, dated 7-10-1997 confirmed the amalgamation of plots after making necessary entries in their official record. Both residential plots, therefore, stood amalgamated as one plot with one plot number as 44-A, Block-6, P.E.C.H.S., Karachi (hereinafter referred to as the suit property). It is the case of the plaintiff in order to build a commercial complex on the suit property, an application for commercialization of the suit property was made for conversion of plot from residential to commercial to defendant No,2, the same was forwarded to defendant No,1 for N.O.C., which was issued on 16-9-1997, subject to the approval by the defendant No,3, which was granted after
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completion of required formalities vide Letter No,F1(3770)96-EVI, dated 2-2-2000. The commercialization of the suit property was competently, legally, properly and validly approved by defendant No,3, which is the only competent Authority as it controls the lands situated with the area of Pakistan Employees Cooperative Housing Society, which position or fact is supported by the relevant record, even of defendant No,l. It is further case of the plaintiff that land control with regard to defendant No,2, Society falls within the jurisdiction of defendant No,3, .Whereas, the Building Control/Civic Amenities are - within the purview of Karachi Development Authority. The plaintiff submitted the building plan to defendant No,2 who forwarded the same to defendant No,l. The defendant No,1 granted approval of the building plan vide their Architectural approval conveyed to the plaintiff under their Letter No,KBCA/KDA/DCB-XXVII/Prop/222/97/1373, dated 25-11-1997. It is further the case of the plaintiff that defendant No,1 granted no objection for sales and advertisement of shops at the project Nice Trade Orbit on the suit property and the advertisement to be published in the Newspaper- vide their Letter No,KBCA/KDA/DCB(D11)/363/ADV-44/97, dated 11-12-1997. It is alleged by the plaintiff that since the permission to sell the offices/shops was granted, it could not have been granted, if the plans were not found proper and duly approved. The plaintiff thereafter, started booking and numerous shops and offices have been booked and now lot of public money is involved. On approval of the building plan, the plaintiff started construction of the building which comprises of ground plus 13 floors strictly in accordance with the approved plan and while construction was in progress, an inspection of the under construction project was carried out by defendant No,1, the plaintiff was directed to comply with the instruction. Contained in Letter No,KBCA/KDA/DCB-XXVII/99/653, dated 12-6-1999, which contains the following instructions:-- (i) To obtain revised Site plan as per the physical/actual dimensions of plot at SITE from the concerned Authorities. (ii) To submit the amended/revised building plans accordingly. (iii) To submit the structure soundness certificate from the licensed Structural Engineer regarding the change/increment in columns size as well as position of columns and structural drawing as per the present position shall be got vetted. (iv) To remove the roof Projections at ground floor forthwith. ' Apart from the above directions, the plaintiff was directed to stop construction work at site and steps were taken to fulfill the above requirements. Revised/amended building plans and structural soundness certificate were submitted before the defendant No,1 through defendant No,2. The leviable scrutiny fee was also deposited. However, due to stoppage of work the roof projection on ground floor could not be removed. Although in strict compliance of Rules and Regulation governing the Building Construction work, revised/amended approved plans were submitted before defendant No,1 but till date the permission to start construction work at site has not been conveyed to the plaintiff, when all the legal requirements have been complied with per se amounts to granting approval and it can, therefore, be safely assumed that in the light of Regulation 13 of Building Regulation Part 1, the Revised Site Plan, amended/revised building plans and structural soundness certificate stands approved and the plaintiff is within his lawful ,right to start construction as delay in grant of approval is causing huge financial loss. The plaintiff wrote a letter dated 1-3-2000 to the defendant No,1 treating it as notice in terms of Regulation 13(3) of Building Regulation Part 1. The defendant No,1 addressed a Letter to defendant No,2, bearing No,PECHS/P.C.S./19/96/161, dated 2-5-2000, intimating the withdrawal/cancellation of amalgamation of suit property, the substance of the letter is reproduced as follows:- ' Subject: Withdrawal/cancellation of amalgamation of Plot No,44-A, PECHS, KARACHI. ' I am directed to convey that the proposal of amalgamation of Plots Nos.44-A and 44-B. Block 6, P.E.C.H.S. Was granted/obtained beyond the area restriction i,e, 800 sq. m. (as per Schedule D, Part II, Town Planning Regulation 1979-82), which was placed before the Oversee Committee in its
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meetings held on 15-11-1999 and 24-4-2000 and the Oversee Committee has decided to cancel the amalgamation of Plot Nos.44-A and 44-B (amalgamated Plot No,44-A) Block 6, P.E.C.H.S., Karachi issued vide Letter No,PECHS/P.C.S.-19/96/449, dated 1-8-1996 which ultimately will cancel the approval .Of building plan etc. (Sd.) Dy. Controller of Buildings (TP-II) ' It is the case of the plaintiff that amalgamation approved is conclusive and final and defendant No,1 has no power and authority to dispute or deny or annul the same on the purported ground of Regulation 2 of Schedule D of Part H of Karachi Building and Town Planning Regulation on the following reasons:-- (i) The Regulation in question is beyond the scope and provisions of Sindh Buildings Control Ordinance, 1979 and consequently, ultra vires. (ii) Alternatively, but without prejudice to the aforesaid submission and assuming that the Regulation is intra vires, it is submitted that the Regulation is directory in nature, and so the alleged noncompliance thereof cannot invalidate the amalgamation, more so, because the plaintiff having acted thereon, bona fide and in good faith, invested huge amounts in getting the amalgamated plot of land commercialized and by raising construction thereon in accordance with the building plan duly approved by defendant No,1. These events were overs and they were absolutely transparently occurred within the knowledge/notice of the officers concerned of defendant No,1 without any objection. The defendant No,1 is estopped from raising the untenable objection at the belated stage when the construction has already reached the third floor. (iii) Alternatively, but without prejudice to what has been stated above, the control of all the lands, within the area of P.E.C.H. Society, is wish defendants Nos.2 and 3, the soliciting the NOC from defendant No,1 was confined to examining by defendant No,1 of the proposed amalgamation from the points of view of the schemes and it was so examined and cleared by defendant No,1. The defendant No,1 on such issuance of NOC, became functus officio, there being no complaint or allegation that the amalgamation is violative of any of the scheme/bye-laws/Layout plan nor any fact with regard to the two plots of land was suppressed by the plaintiff nor any misrepresentation has or can be alleged as the plaintiff had submitted all the relevant true papers relating thereof and so none has been alleged to the contrary. It was completely a transparent and bona fide exercise on the part of the, plaintiff. (iv) Clause (ii) of the said Regulation 2. Has no nexus with the provisions of Sindh Buildings Control Ordinance; 1979. It is quite vague, purposeless and in any case, irrational and or unreasonable and legally unforceable. (v) In any event, the alleged non-compliance of the aforesaid clause (ii) stood cured and condoned when before the submission of the building plan to defendant No,1, the commercialization of the amalgamated plot had already been approved by defendant No,3, which is the only competent Authority to give such approval. ' It is the case of the plaintiff that commercialization of the suit property was competently, legally, properly and validly approved by defendant No,3 which is the only competent Authority as it controls the lands within the area of PECH Society. The defendant No,1 has no right and authority to question, dispute or deny the validity of the commercialization approved by defendant No,3. The rule 4 of Schedule "D" of Karachi Building and Town Planning Regulations (Part II) is ultra vices of Sindh Building Control Ordinance. 1979, and therefore, legally it is ineffective and inapplicable. Approval of commercialization of the plot of land was accorded much before the submission of the building plan for the approval of defendant No,l. It was also alternatively pleaded that in case aforesaid Regulation is applicable to the case of the plaintiff, sufficient compliance was made to the requirements of the said Regulation by the plaintiff and all the necessary documents were transparently submitted by him and required notices were published. No objection was received in
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response to such publications, almost all the plots, around the suit property and on main Sharah- e-Faisal are commercial and many multistorey buildings stand thereon. On above facts, the plaintiff claimed the following reliefs:-- (1) That having complied with all the conditions and requirements of the KBCA as stated in their annexed letters, the plaintiff is lawfully entitled to raise construction of ground plus 13 storeyed building on Plot No,44-A, Block-6. PECH Society, Karachi. (2) That the amalgamation and commercialization being made on the basis of no objections given by defendants, such amalgamation and commercialization is legal, and therefore. There is no justification in interference with the construction work of the plaintiff. (3) That the construction of Building known as Nice Trade Orbit is strictly -as per approved plan duly approved by the defendants and permission to sell the offices and shops is in continuity of such approval. (3-A) Any action, order, decision or direction taken, passed or given by defendant No,1 adversely affecting the amalgamation of Plot No,44-A/6, PECH Society, Karachi its commercialization the approval of the building plan and or the permission to sell the shops/offices in the building raised thereon, is unwarranted, unjust, illegal and void and are of no legal effect whatsoever. Consequently, all the no objection certificates issued for such amalgamation, commercialization, sale of offices/shops, including the approval of building plan, subsist and are fully operating. ' That the stoppage of construction work ordered by the defendaht No,1 was a mala fide act, on the part of the said defendant and such orders were in clear violation of building rules as all the conditions laid down by the defendant No, 1 vide its Letter KBCA/KDA/DCB-XXVII/99/653, dated 12- 6-1999 were duly complied with. ' And while granting such declarations, this Honourable Court may be pleased to restrain the defendants, their agents, staff or anyone representing through them from interfering in the construction work of the plaintiff or demolishing or forcing the plaintiff to demolish any part of the building known as Nice. Trade Orbit. ' The plaintiff also prays for costs of this suit and any other relief which this Honourable Court may deem fit and proper in the circumstances of the case. ' The defendant No,2 (PECHS) in their written statement have admitted that Plots Nos.44-A, Block 6, PECHS, measuring about 1000 sq. Yds. Were transferred in the name of Nazzar Ali, Nizar Ali and Mehmood Ali, whereas, PlotNo,44-B, measuring about 1533 sq. Yds. Was transferred in the name of Shehzad Akbar, Shehbaz Akbar, Shehwaz Akbar and Mrs. Shehlina Akbar. Application for amalgamation of the two plots was submitted to the Society which was forwarded to the Karachi Building Control Authority, who after scrutiny, had granted the approval. The defendant No,1 granted its approval for commercialization of the plot vide their letter, dated 16-9-1997. The commercialization of the plots was also approved by defendant No,3 through their letter, Annexure "G". They have also admitted that the building plans were forwarded by them to the .Defendant No,1. However, further action on the said plans was not intimated to the Society, either by the plaintiff or from the defendant No,1. They have also admitted that land was granted to PECHS by Government of Pakistan through a licence agreement executed in the year 1958 and the control of the PECHS land still vests in the defendant No,3. They admitted that after survey of the plot as per actual position and measurement prevailing at the site, a plan was submitted to the Karachi Building Control Authority who confirmed the said plan through their Letter, dated 5-11-1999. They maintained that on 2-5-2000 through Letter No PECHS/P.C.S.-19/95/ I 61. The defendant No, I addressed a letter to the Honorary Secretary of PECHS, whereby the amalgamation of the two plots which were granted by the defendant No,1, itself has been withdrawn. The approved building plans have also been cancelled. They disputed the power of cancellation of permission granted for amalgamation in the year 1996 subsequent withdrawal of plan when the building is under
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construction and taken the same an example of maladministration and discrimination. They also pointed out that the approval of amalgamation has been withdrawn on the ground that it was granted beyond the restricted area of 800 sq. Meters. They have pointed out number of instances of the approval granted by defendant No,! Beyond the said area. They have detailed the instances of such amalgamation as follows:-- (1) 50-A and 50-B/6 were approved for amalgamation (2) Plots Nos.154-A, 154-B and 154-C Block 2 were approved for amalgamation, (3) Plots Nos.43-10-J, 43-10-K, 43-10-L and 43-10-M (4) Plots Nos.38-G-1 and 38-G-2 were also approved for amalgamation. ' The defendant No,1 (Karachi Building Control Authority) through their written statement have contested the suit by raising pleas of facts and law. ' On legal plane, they maintained that (1) the suit is not maintainable against the defendant No,1 as the Karachi Building Control Authority has not been impleaded as party in the suit. (2) The suit is barred under section 42 of the Specific Relief Act as the plaintiff has no locus standi to file the suit under reference. (3) The amalgamation of two plots having areas of 1000 sq. Yards and 1533 sq. Yards cannot be granted/allowed under Regulation 2(ii) of Schedule "D" Part II of Karachi Building and Town Planning Regulation, which states that the maximum areas of the amalgamated residential plots shall not exceed 800 sq. Meters (957 sq. Yards). Both plots in question at the time of amalgamation were residential plots having combined area of 2433 sq. Yards which is in excess of allowable limits under the law which renders the commercialization of plots in question to be unlawful having no legal effects with the result that the suit is not maintainable in law. (4) As the provision of rule 4 of Schedule "D" Part II of Karachi Building and Town Planning Regulation have not been adhered for changing of land use of residential plots which requires that the concerned authority shall issue the public notice for the change of land use but in the case under reference the builder/plaintiff himself issued a small public notice in the newspaper and that too in the classified section to hoodwink the general public from objections to the said change of land use. (5) The suit is not maintainable under section 56(d)(j) of Specific Relief Act, the defendant No,1 being statutory authority cannot be restrained from the performance of its duty by way of injunction. ' On factual plane, it was pleaded that NOC for amalgamation of plots in question was not obtained from the competent Authority, as the Controller Building is not competent Authority appointed by the Government as such alleged NOC is void ab initio having no legal effects. The plaintiff obtained the alleged NOC by unlawful means otherwise it would not have been issued under the law as amalgamation of plots having more than area of 800 sq. Meter cannot be allowed under Regulation 2(ii) of Schedule "D". The defendant No,1 Authority is not responsible for the individual unlawful acts of its officers. The plaintiff arranged to obtain no objection for conversion of residential Plot No,44-A into commercial on the basis of fraudulent/ unlawful amalgamation so much so the commercialization is also against the provisions of rule 4(c) of Schedule "D" of the Regulation Part II which requires that the concerned authority shall issue public notice for inviting of objections which objections shall be conveyed by the concerned authority and thereafter final NOC to be issued by the concerned authority after approval of MP 'and EC but in the instant case neither final NOC was obtained nor the defendant No,3 has approved the commercialization of the plots and it was their case that the plaintiff on the basis of unlawful amalgamation and commercialization arranged to get the plan approved by unlawful means otherwise it should not have been approved under rules 27(2) Chapter 3 and 34(2) and rule 9(2) of Karachi Building and Town Planning Regulation Part I. They also pointed out that the following violations committed by the plaintiff during the construction of the approved plans:--
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(A) KESC subsection provided in the basement of the building plan is clear contravention of rule 27(2) of Karachi Building and Town Planning Regulation. (B) The minimum width of arcade should be 2.5 m (8.3 ft) whereas the width of arcade in the approved plan is 7'.5", which is in contravention of rule 34(2) of Karachi Building Town Planning Regulation. (C) The approved plan does not show gradient of ramp which is in contravention of rule 9(2). ' They have also maintained that the violation of building plan and advertisement were cancelled by KBCA vide letter, dated 2-5-2000 in accordance with the provisions of law by providing opportunity by issuing show-cause notice and it was further maintained that plaintiff also committed following violation in addition to other violations already pointed out. (i) Plinth verification certificate was cancelled as the structure was against the approved plan. (ii) Dimension has been changed (120 ft. 3 inches x 185 ft. 0 inch) average instead of (120 ft. 0 inch x 190 ft. 0 inch) and as such plot dimension has been changed with 3 ft. 0 inch. ' Out of the pleadings of the parties, the consent proposed issues were taken as issues settled by this Court on 25-8-2001, which reads as follows:-- (1) Whether the suit is barred under sections 42 and 56(d) and (j) of Specific Relief Act, and also barred under Schedule D (page 51) Part II of Karachi Building Town Planning Regulations. (2) Whether the amalgamation and commercialization of Plots Nos.44-A (1000 sq. Yds.) and 44-B (1533 sq. Yds.) into one plot of land of 2533 sq. Yds. Is illegal and invalid, if so its effect? (3) Whether defendant No,1 has any right and authority to question or nullify the amalgamation of the suit-land and or its commercialization, more so, when the same was duly acted upon by the plaintiff and construction made thereon? (4) What is the legal effect of the issuance by defendant No,1 of NOC dated 11-12-1997 (Annexure "H" of the plaint)? (5) Whether defendant No,1 has rightly and justly stopped construction being raised on the suit- land, if not its effect? (6) Whether the plaintiff committee any fraud or made any misrepresentation in obtaining the amalgamation of the suit-land, if so, its effect? (7) To what relief, if any, the plaintiff is entitled? ' At the trial, plaintiff Nazaz Ali examined himself and produced numerous documents, whereas, on behalf of the defendant No,1, Syed Mehmood Ali, the Deputy Controller Buildings was examined. The defendant No,2 (PECHS) examined Iqbal Ahmed, Administrative Officer, who also produced numerous documents. The witnesses examined on behalf of the respective parties were subjected to cross-examination. Their evidence and documents will be referred while discussing the issues as and when necessary. Issue No,1 The plea taken by the defendant is that the suit is barred under sections 42 and 56(d) and (j) of the Specific Relief Act and also barred by Schedule "D" Part II of Karachi Building and Town Planning Regulation. At the very outset, it can be conveniently observed that there is no barring provision in Regulation itself against the filing of the suit. So far as the plea that the suit is barred under section 42 of the Specific Relief Act is concerned, no doubt, every kind of declaration is not permissible under the law except in the circumstances mentioned in section 42 of the Specific Relief Act, which runs thus:- "42. Discretion of Court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to - any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief. Bar to such declaration.--- Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than mere declaration of title, omits to do so.
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' Explanation.--- A trustee of property is a person interested to deny a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee." From the perusal of the above provision, it would be clear that a declaration can he asked for breach of proprietary right or declaration of legal character or status. The perusal of paras. 1 and 3- A are in respect of the declaration about the plaintiff's entitlement to raise construction and any decision or direction taken or given by defendant adversely effecting the amalgamation its commercialization A and approval of the building plan amounts to denial of proprietary right. The plaintiff is admittedly co-owner in the amalgamated plot and denial of his right in respect of the property would definitely fall under the provision of section 42 of the Specific Relief Act. Therefore, the contention of the learned counsel for the defendant that suit is barred under the provision of section 42 of the Specific Relief Act is not tenable. Secondly, he contended that the plaintiff is not the sole owner of the plots and co-owners have not been joined, as such, the suit is not maintainable. ' I have examined the written statement, no plea of non-joinder has been taken by the defendant No,l. No issue has been framed, therefore, in terms of rule 13 of Order 1, C.P.C., which requires that all objections on the ground of non-joinder, or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived, cannot be raised after the framing of the issues at the stage of arguments. ' It has also been argued by the defendants' counsel that the injunction prayed for is…
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