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Official Citation: 2024 SHC 757
Court / Jurisdiction: Sindh High Court
Petitioner: Suit 753/2024 (S.B.) Sindh High Court, Karachi - Muhammad Faisal & others (Plaintiff)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2024 SHC 757. In this matter between Suit 753/2024 (S.B.) Sindh High Court, Karachi - Muhammad Faisal & others (Plaintiff) and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Sindh High Court CASE NO: Suit 753/2024 (S.B.) Sindh High Court, Karachi CITATION: 2025 SHC KHI 2004 PARTIES: Muhammad Faisal & others (Plaintiff) ORDER DATE: 11-FEB-25 BENCH: Hon'ble Mr. Justice Muhammad Abdur Rahman(Author) A.F.R: Yes ------------------------------------------------------------ 1 ORDER SHEET
THE HIGH COURT OF SINDH, KARACHI
Suit No. 753 of 2024
Before: Mohammad Abdur Rahman,J
Muhammad Faisal & others
Versus
Sindh Building Control Authority & others
___________________________________________________________ Dated: Order with signature of Judge(s)
For hearing CMA No.10156 of 2024 (U/O. XXXIX Rules 1 & 2 CPC) ___________
Dates of Hearing : 1 August 2024, 2 August, 2024, 10 August 2024, 17 August 2024, 2 September 2024, 23 September 2024, 30 September 2024, 4 October 2024, 11 October 2024 and 11 February 2025.
Plaintiff : Through Mr. Rehman Aziz Malik Advocate
Defendant No.1 : M/s. Dhani Buksh Lashari
Defendant No.2 : Ms. Fauzia Khan, Advocate
Defendant No.3 : Mr. Mehmood Yousufi, Advocate
Defendant Nos.4, 5 7 & 8 : Mr. Pervaiz Ahmed Mastoi & Mr. Irshad Ali Shaikh, Additional Advocate Generals
Defendant No.6 : Mr. Akhtar Ali Mastoi, Advocate
Defendant No.9 : Mr. Mushtaq A. Memon Advocate
Defendant No.11 : Mr. Taimur A. Mirza Advocate
Defendant No.12 : Mr. Muhammad Abdullah, Advocate
Defendant No.13 : Mr. Muhammad Ilyas Warraich, Advocate
O R D E R
MOHAMMAD ABDUR RAHMAN, J. This order will decide CMA No. 10156 of 2024 being an application under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure, 1908 that has been maintained by the Plaintiff seeking to:
2 (a) restrain the Defendants No. 9 to 11 from:
(i) raising any further construction on Plot No. D -10 and D -25 Block A, North Nazimabad, Scheme No. 2, Karachi both admeasuring 1000 square yards (hereinafter referred to as the “Said Properties”) and or from occupying the suit properties or any part thereof;
(ii) creating third party rights in the Said Properties in any manner whatsoever; and/or
(iii) parting with the possession of the Said Properties or any part(s) thereof;
(b) restrain the Defendants No. 1 to 3 from:
(i) regularizing the illegalities in the construction that exists on the Said Properties;
(c) restrain the Defendants No. 4 to 6
(i) from permitting the registration of the transfer of the Said Properties;
(d) restrain the Defendants No. 15 and 16
(i) from installing utility connections over the Said Properties.
A. Facts
2. The facts that are material to the adjudication of this Application are not in dispute. The Karachi Development Authority (hereinafter referred to as the “KDA”) had under the provisions of the Karachi Development Authority Order, 1957 (hereinafter referred to as the “KDA Order, 1957”) caused for a statutory Improvement Scheme to be developed , which was given the name “KDA Improvement Scheme No. 2” entitled “North Nazimabad Town Expansion Scheme ,”1 and in terms of which
1 The Notification under Article 50 of the Karachi Development Authority Order sanctioning Karachi Development Authority Scheme No. 2 was published in the Gazette of West Pakistan Part 1-A dated 7 August 1964 at pg. 91-92.
3 Improvement Scheme the KDA caused plots to be developed and thereafter auctioned and leased inter alia to the general public.
3. Each of the Said Properties were leased by the KDA to the predecessor in interests of the Defendant No. 9 to 11. There is no dispute that the Said Properties, at the time when they were developed, auctioned and leased by the KDA, were developed, auctioned and leased as residential properties on a 99-year lease. As originally leased, the road on which Plot No. D -10, Block A, North Nazimabad, Scheme No. 2, Karachi was located is known as Sharah-e-Shershah Soori and which is one of the roads in the city of Karachi where the usage of plots abutting this road, with effect from 1 February 2004, have been permitted to being converted from residential to commercial.2 Plot No. D-25 Block A, North Nazimabad, Scheme No. 2, Karachi backs Plot No. D -10, Block A, North Nazimabad, Scheme No. 2, Karachi and hence , when originally planned , did not abut Shahrah e Shershah Suri.
4. An application was made by the owners of the Said Properties to the Master Plan Department of the Sindh Building Control Authority (hereinafter referred to as the “SBCA”) to amalgamate these two properties and which approval for amalgamation was granted by the Master Plan Department of the SBCA on 13 July 2017 and subsequently by the Karachi Development Authority (hereinafter referred to as the “KDA”) on 3 November 2017 . The property, after the amalgamation was sanctioned, was numbered as Plot No. D -10, Block A, North Nazimabad, Scheme No. 2, Karachi admeasuring 2000 square yards (hereinafter referred to as the “Suit Property”) and was leased by the Karachi Development Authority (hereinafter referred to as the “KDA”) on a residential lease for 99 years.
5. The Defendants No. 9 to 11 are the current owners and/or developers of the Said Properties and had, applied and on 22 August 2017 obtained a permission from the Master Plan Department, of the SBCA causing the usage of the Suit Property to be converted from a residential property to a commercial property. The sanction for conversion of the Suit Property was conditional and which inter alia imposed a condition as stated as hereinunder:
2 See Tajveez No. 3 of the Change of Land Use of City District Government, Bye Laws 2003 issued pursuant to City Council Resolution No. 383 dated 6 January 2004 and Regulation 18 -13 of the KB&TPR,2002
4 “ … 6. Building Plans shall be submitted for approval to SBCA. The relevant and applicable Rules and Regulations contained in KB&TPR - 2002 amended upto date
7. Since plot in question is amalgamated with rare side plot abutting o n the residential side therefore KB TPR 2002 (Amended uptodate) clause 18 -4.5 shall be applicable which is reproduced as under:
“ the residential plots facing declared commercial road and amalgamated with rear plot and if the rear plot adjoins residential plots on side on rear plot only parking floors shall be allowed provided that access shall be from front plot. The total allowable FAR shall be the FAR applicable on Front Plot plus the total covered area of parking floors at rear plots”
6. After having secured permission for conversion, the Defendants No. 9 to 11 twice applied to the SBCA for approval for construction on the Suit Property and which were sanctioned by the SBCA in the following terms:
(i) on 9 September 2022 permission for construction of a “commercial” building comprising of Basement (Air Raid Shelter + Sho wrooms + Services + Parking ) + Ground (Showrooms + Services + Parking ) + 1 st Floor (Services + Parking) + 2nd Floor and 3rd Floors (Showroom + Parking) + 4th Floor to 6 th Floors (Services + Parking) + 7th Floor (Recreation Area + Flats + Services ) + 8th Floor to 1 9th Floors (Flats) + Roof (Solar Panels + Battery Room + Services) was sanctioned; and
(ii) on 19 June 2023 obtained permission fo r construction of a “commercial” building comprising of a Basement (Air Raid Shelter + Showrooms + Services + Parking) + Ground (Showrooms + Services+ Parking) + 1 st Floor (Showroom + Services + Parking) + 2 nd Floor and 3 rd Floors (Ballroom/ Showroom + Parking) + 4 th Floor to 6 th Floors (Services + Parking) + 7 th Floor (Partly Parking + Services) + 8 th Floor (Recreation Area + Flats + Services) + 9 th to 29 th Floors (Flats) + Roof (Solar Panels + Battery Room + Services) was sanctioned.
7. The Plaintiff is the owner/resident of Plot No. D -24, Block A, North Nazimabad, Scheme No. 2, Karachi and which property backs the Suit Property but which does not abut Sharah -e- Shershah Soori and hence the usage of which cannot be converted from residential to commercial. They are aggrieved by the construction that is being carried out on the
5 Suit Property and seek various injunctive relief which have been clarified in paragraph 1 of this order.
8. On an application bearing CMA No 10173 of 2024, the Nazir was appointed commissioner to verify the status of the construction and as to whether the construction on the Suit Property was in conformity with the approval sanctioned by the SBCA and who has by his report confirmed that there are no deviations from the approval granted as compared to ongoing construction being raised on the Suit Property.
B. Contentions on behalf of the Plaintiff
9. Mr. Rehman Aziz Malik has entered appearance on behalf of the Plaintiff. He maintained that the Plaintiff is the owner of a property that backs the Suit Property and who is aggrieved by the construction of a Basement (Air Raid Shelter + Showrooms + Services + Parking) + Ground (Showrooms + Services+ Parking) + 1 st Floor (Showroom + Services + Parking) + 2 nd Floor and 3rd Floors (Ballroom/ Showroom + Parking) + 4 th Floor to 6 th Floors (Services + Parking) + 7 th Floor (Partly Parking + Services) + 8 th Floor (Recreation Area + Flats + Services) + 9 th to 29 th Floors (Flats) + Roof (Solar Panels + Battery Room + Services) building thereon.
10. Regarding his locus standi to maintain the Suit, he relied on a decision of a Division Bench of this Court in a Constitution Petition reported as Ardeshir Cowasjee and 7 others vs. Karachi Building Control Authority (KBCA) through Chief Controller of Buildings, Karachi and 3 others3 wherein it was held that a resident of a locality had a right to maintain a Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. He also relied on three orders of Learned Single Judges of this Court reported as H.A. Rahim & Sons (Pvt.) Ltd. vs. Province Of Sindh ,4Arif vs. Jaffar Public School through Principal/Administrator and 8 others 5 and Pakistan Defence Officers Housing Authority vs. Federation of Pakistan Through Secretary, Ministry Of Environmental Protection 6 in which it was held that Section 42 of the Specific Relief Act, 1877 w as not exhaustive and a suit for declaration could be maintained, under Section 9 of the Code of Civil Procedure, 1908, to declare an action of a public functionary as illegal.
3 PLD 2006 Karachi 63 4 2003 CLC 649 5 2002 MLD 1410 6 PLD 2014 Karachi 511
6
11. He contended that the Plaintiff being a lessee of a property that was developed, auctioned and leased by the KDA under the same “building scheme” as the Suit Property , as per the rule in Elliston vs. Reacher7 the Plaintiff had a right to enforce the terms of the covenant contained in the lease as between the KDA and the Defendants No. 9 to 11 and to maintain the status of the Suit Property as residential. He maintained that the common law r ule in Elliston vs. Reacher 8 had been followed by this Court in the decision reported as Ardeshir Cowasjee vs. Muhammad Naqi Nawab 9 and where a learned Single Judge of this Court had, while finding that a building scheme was in existence, confirmed an injunction on the basis of a term of lease to which the Plaintiff in that suit was not a party, which term had restrained the usage of the property to any purpose other than residential and on the basis which this Court had prohibited the Defendant from deviating from the terms of the lease issued by the Karachi Municipal Corporation. Relying on Section 40 of the Transfer of Property Act, 1882, he said that such a restrictive covenant was enforceable by the Plaintiff as against the Defendants No. 9 to 11.
12. He further contended that the Supreme Court of Pakistan had in the decision reported as Abdul Karim vs. Nasir Salim Baig 10 passed an interim order, with effect from 22 January 2019, prohibiting the conversion of the land use of any property and which order still subsists and on account of which the SBCA could not have sanctioned the approval of the construction on the Suit Property on 19 June 2023. He next referred to a decision of the Supreme Court of Pakistan reported as Suo Moto Case No. 3 of 2009 11 which clarified that executive and judicial authorities were constitutionally obliged to implement the orders of the Supreme Court of Pakistan and submitted that it was hence the duty of this Court to implement the interim order passed by the Supreme Court of Pakistan in Abdul Karim vs. Nasir Salim Baig 12 and to restrain the conversion and usage of the Suit Property from residential to commercial.
13. Clarifying that the simpliciter declaration , by the City Council of the City District Government, Karachi, that plots abutting a “declared” road could be converted from residential to commercial did not ipso facto give
7 [1908] 2 Ch. 374 8 [1908] 2 Ch. 374 9 PLD 1993 Karachi 631 10 2020 SCMR 111 11 2015 SCMR 976 12 2020 SCMR 111
7 the Defendant No. 9 to 11 the right to deviate from the process that had to be followed prior to obtaining sanction of such conversion as was contained in the Change of Land Use of City District Government Karachi Bye-Laws, 2003 or, where applicable , the Karachi Building and Town Planning Regulations, 2002 (hereinafter referred to as the “KB&TPR, 2002”) and where there was a deviation from the same, an injunction must be granted. In this regard he relied on two decisions of the Supreme Court of Pakistan reported as Muhammad Siddique vs. Federation of Pakistan through M/O Works and Housing and others 13 and Jawaid Mir Muhammadi vs. Haroon Mirza 14 and three decisions of a Division Bench of this Court reported as Jawaid and 6 others vs. Province of Sindh through Minister, Ministry of Local Government and 4 others,15 Nighat Jamal vs. Province of Sindh16 and Muhammad Nasir and 7 others vs. Government of Pakistan through Ministry of Housing and Town Planning, Islamab ad and 6 others 17 and two orders of Learned Single Judge of this Court reported as Abdul Samad and 10 others vs. Ch. Abdul Waheed Nasir and 5 others 18 and Navid Hussain and 5 others vs. City District Government, Karachi (CDGK) through District Coordination Officer, Karachi and 4 others 19 directing that a plot that had been illegally converted from residential to commercial in violation of the provisions of the Article 40 of the KDA Order, 1957 or the provisions of the Karachi Building and Town Planning Regulations 1979 could not be upheld. In this regard he contended that while public notices were issued inviting public objections prior to the Suit Property’s usage being converted from residential to commercial, in reality this has no impact as it should have been drawn to the attention of the Plaintiffs who are the immediate neighbours of the Suit Property. Relying on a judgment of the High Court of Calcutta reported as Bhairab Chandra Sinha vs Kalidhan Roy Choudhury and Ors20 he submitted that where a public notice is mandated by law to be issued , a right to object will not be waived unless it is shown that the attention of person who had a right to object to such a notice, was in fact drawn to the said notification. This he contends was not done and as such he maintains that the Plaintiffs right to object cannot be considered as waived.
13 2013 SCMR 1665; Upholding a decision of a Division Bench of this Court in CP No. D -1126 of 2006 14 PLD 2007 SC 472 15 2019 CLC 1032 16 2010 YLR 2624 17 2014 CLC 1666 18 2017 YLR Note 426 19 2007 CLC 912, This decision was set aside on appeal by the Supreme Court of Pakistan in the decision reported as Haji Amin vs. Navaid Hussain and others 2008 SCMR 133 20 AIR 1929 Calcutta 736
8 14. In terms of the injunctive relief, relying on a decision reported as Al- Jamiul Arabia Ahsanul Uloom and Jamia Masjid and others vs. Syed Sibte Hasan and others 21 he contended that where a weekly market was illegally established on an amenity plot meant for a playground, a learned Single Judge of this Court has held that where the action being complained of was premised on an illegality, an injunction must be granted. Relying further on a decision of the Supreme Court of Pakistan reported as Government of Pakistan through Ministry of Finance vs. M.I. Cheema, Dy. Registrar, Federal Shariat Court and others 22 he contended that a Court could grant interim relief even if it would tantamount to granting the final relief in the lis if the circumstances warranted it. He also relied on a decision of a Division Bench of this Court reported as Porsche Middle East and Africa FZE and another s vs. Akbar Adamjee and others 23 in which it was held that the fact that the grant of the injunction would tantamount to granting one of many prayer clauses, would not impede a court from granting an injunction. He emphasised that a Division Bench of this Court in the decision reported as Balagamwala Oil Mills (Pvt.) Ltd vs. Shakarachi Trading A.G. and 2 others24 had held that it was open for a court while hearing an interim application for an injunction to mo uld the relief on the application in accordance of the circumstances of the lis. He further contended that a learned Single Judge of this Court in the decision reported as Muhammad Anas Kapadia and 19 others vs. M. Farooq Haji Abdullah and 5 others25 has held that a challenge in the suit to the vires of a legislation would not preclude an injunction from being granted. On this basis he maintained that the application under order should b e granted and the Defendants No. 9 to 1 1 should be restrained from raising any further construction on the Suit Property.
C. Contentions on Behalf of the Defendant No. 11
15. Mr. Taimur A. Mirza, entered appearance on behalf of the Defendants No 11 and maintained that Sharah e Sher Shah Suri had been declared, by the City Council of the City District Government Karachi, under the Change of Land Use of City District Government Karachi Bye -Laws, 2003 as a road on which the usage of plots located thereon could be converted from residential to commercial. He contended that an application was made to amalgamate the Said
21 1999 YLR 1634 22 1992 SCMR 1852 23 PLD 2020 Sindh 415 24 PLD 1990 Karachi 1 25 2007 CLC 943
9 Properties to the Master Plan Department of the SBCA and which had accorded their approval on 23 July 2017 and which amalgamation w as finally sanctioned by the KDA on 3 November 2017.
16. He maintained that while in clause 5 of the sanction dated 3 November 2017 accorded by the KDA to the amalgamation an undertaking had been given by the applicant that they would not use the Suit Property other than for the purpose that it had been leased i.e., for residential use, he contended that such an undertaking did not prevent the Defendants No. 9 to 11 from making a subsequent application to seek conversion of the Suit Property from residential to commercial.
17. Regarding the commercialisation of the Suit Property he maintained that the Master Plan Department of the SBCA had accorded its sanction for the conversion of the usage of the Suit Property from residential to commercial on 22 August 2017 and the KDA followed suit granting its consent to the conversion of the usage on the same date that the Amalgamation had been sanctioned i.e., 3 November 2017. He maintained that in accordance with the procedure for conversion due notice was given by the issuance of a public notice in newspapers on 1 July 2017 and in response to which no person came forward to object. He submitted that the Plaintiffs having failed to object to the conversion of the usage of the Suit Property had waived their rights and could not at this belated stage challenge the construction on the Suit Property.
D. Query from Court
18. After hearing the Counsel for the Plaintiff and the Defendants No. 9 to 11, I had requested them to assist the court on issues that had not been addressed by any of them in the course of their arguments namely:
(i) that on the date the approval was granted by the Master Plan Department of the SBCA to convert the S uit Property from residential to commercial i.e., 22 August 2017 , as to whether the power to town plan had been conferred on the SBCA;
(ii) as to whether the approval that has been accorded for the construction of flats on the S uit Property could not be accorded after the property has been converted to commercial and on which only commercial construction
10 could be raised as defined in Regulation 19 -2.2.6 of the KB&TPR,2002; and
(iii) as to the basis on which the Floor Area Ratio for the construction has been increased from 1:5.5 to 1:7 by the SBCA for construction on the Suit Property.
E. Contentions of Mr. Mushtaq A Memon and Mr. Dh ani Bax Lashari on the queries raised by the Court
19. Mr. Mushtaq A Memon entered appearance on behalf of the Defendant No. 9 and through, no fault of his own, relied on a document entitled the Sindh Master Plan Authority Act, 2020 and which would give the impression that a statute had been passed by the Provincial Government to enact the same. As I had been similarly misled in the past, I had knowledge of the fact that no such statute had ever been passed by the Provincial Assembly of Sindh and many a publisher had negligently been indicating such a document to having been passed by the Provincial Assembly of Sindh when in fact it had not. This fact was also confirmed by the Additional Advocate General Sindh.
20. Mr. Mushtaq A. Memon thereafter referred the Court to Paragraph 13, 14 and 16 of the Plaint and contended that the Plaintiff had to make out a prima facie case on the allegations that had been raised in the Plaint. In this regard he relied on a decision of a Learned Division Bench of this Court reported as Muhammad Matin vs. Mrs. Dino Manekji Chinoy and others26 in which the perquisites of determining an injunction were identified by that Court. He also relied on a decision reported as Mrs. Dino Manekji Chinoy and 8 others vs. Muhammad Matin 27in which the decision of the Learned Division Bench was upheld. He further relied on an order passed by a Learned Single Judge of this Court reported as Sayyid Yousaf Husain Shirazi vs. Pakistan Defence Officers Housing Authority and 2 others 28 and The Karachi Catholic Co-operative Housing Society Ltd. vs. Daphne Mary Mendonca29 in which similar observations were made by the Court.
21. Mr. Mushtaq A. Memon next directed the Courts attention to an order of a Learned Single Judge of this Court reported as Mst. Humaira
26 PLD 1983 Karachi 387 27 PLD 1983 Supreme Court 693 28 2010 MLD 1267 29 1990 MLD 2232
11 Aslam vs. Abdul Rahim Rafi 30 in which the Court when considering whether an injunction should be granted to restrain construction on a plot that abutted a road on which the usage of plots had been permitted to being converted from residential to commercial , had declined to grant an injunction. He finally relied on a judgment of a Learned Single Judge of this Court reported as Abdul Ghafoor Memon vs. Mohammed and another31 to submit that delay in maintaining a suit would disentitle a plaintiff from obtaining an interim injunction.
22. Regarding the construction of flats on commercial plots, Mr. Mushtaq A. Memon drew the attention of this Court to the definition of the expression commercial plot as made in Sub-Section (e) of Section 2 of the Sindh Disposal of Urban Land Ordinance, 2002 and in which the definition of commercial has been expanded to include “commercial cum residential” usage and pressed for such a definition to be applied by the SBCA to the provisions of the KB&TPR, 2002 when sanctioning an approval to a construction.
23. Regarding the power of the SBCA to town plan, Mr. Mushtaq A Memon without dilating on any of the legal issues, choose instead to give an undertaking to the court that the construction on the Suit Property would be of a “commercial” nature and would be at a Floor Area Ratio of 1:5.5 and prayed for the application to be disposed of in those terms.
F. Contentions of the SBCA on the queries raised by the Court
24. Mr. Dhuni Bux Lashari conceded that flats, being residential in nature, had incorrectly been approved under Regulation 25 -3 of the Karachi Building & Town Planning Regulations, 2002 as commercial in the approval accorded to the Defendants No. 9 to 11 under Sub -Section (1) of Section 6 of the Sindh Building Control Ordinance, 1979 and under which Regulation only commercial structures could be…
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