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Official Citation: 2024 SHC 309
Court / Jurisdiction: Sindh High Court
Petitioner: Suit 309/2024 (S.B.) Sindh High Court, Karachi - OWAIS SALAM (Plaintiff)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2024 SHC 309. In this matter between Suit 309/2024 (S.B.) Sindh High Court, Karachi - OWAIS SALAM (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 309/2024 (S.B.) Sindh High Court, Karachi CITATION: 2024 SHC KHI 343 PARTIES: OWAIS SALAM (Plaintiff) ORDER DATE: 31-AUG-24 BENCH: Hon'ble Mr. Justice Muhammad Abdur Rahman(Author) A.F.R: Yes ------------------------------------------------------------ 1
ORDER SHEET IN THE HIGH COURT OF SINDH, KARACHI
Suit No.309 of 2024 Mr. Owais Salam Versus Federation of Pakistan & Others AND Suit No.670 of 2024 Shaikh Faisal Naqi Versus Sindh Building Control Authority & another AND J. M. No. 15 of 2024 Mr. Owais Salam Versus Shaikh Faisal Naqi Date: Order with signature of Judge
Plaintiff in Suit No.309 of 2024, Defendant No 2 in Suit No. 670 of 2024 and Applicant In J.M No. 15 of 2024 : Mr. Taimur Ali Mirza & Mr. Ali Nawaz Khuhawar, Advocates.
Defendant No.3 in Suit No. 309 of 2024 and Defendant No 1 in Suit No. 670 of 2024 : Mr. Dhani Buksh Lashari, Advocate.
Defendant No.4 in Suit No. 309 of 2024 : Mr. Abdul Razzaq, Advocate.
Plaintiff in Suit No. 670 of 2024 and Respondent No. 1 In J.M No. 15 of 2024 : Mr. Muhammad Ali Lakhani, Advocate.
Date of hearing : 18 July 2024, 1 August 2024 and 3 August 2024
2 J U D G E M E N T
MOHAMMAD ABDUR RAHMAN,J: Through this Judgment I will be deciding two suits bearing Suit No. 309 of 2024 and Suit No. 670 of 2024 each of which pertain s to the construction that exists on Plot No.17/60, Block-03, Faran Cooperative Housing Society Limited admeasuring 1028 square yards (hereinafter referred to as the “Said Property”) and will also be deciding J.M. No. 15 of 2024 which has been maintained by the Plaintiff in Suit No. 309 of 2024 under Sub-Section (2) of Section 12 of the Code of Civil Procedure, 1908 impugn ing two orders dated 13 June 2024 and 25 June 2024 passed in Suit No. 670 of 2024 on the grounds that those two orders were obtained by the Plaintiff in Suit No. 670 of 2024 through fraud and misrepresentation.
A. Suit No. 309 of 2024
2. The Plaintiff in Suit No. 309 of 2024 is the owner of the Said Property which was leased on 12 February 1969 by the Ministry of Housing and Works, Government of Pakistan to his predecessor in interest. The Plaintiff in Suit No. 309 of 2024 stated that he received a visit from an officer of the Sindh Building Control Authority (hereinafter referred to as the “SBCA”) on 23 March 2024 (a public holiday) and who alleged that the construction on the Said Property was not in conformity with the approval accorded to him by the SBCA. It is contended by the Plaintiff in Suit No. 309 of 2024 that the approval that was accorded for construction on the Said Property was issued by the SBCA on 5 December 2022 permitting the construction of a Basement + Ground + 1st Floor structure but which is contrarily depicted in the plan appended to that approval as disclosing a Lower Basement + Basement + Ground Floor + 1 st Floor construction having been approved for construction on the Said Property. The Plaintiff in Suit No. 309 of 2024 contending inter alia that the action of the SBCA amounted to harassment has maintained this Suit seeking the following relief:
“ … a. Declare that the Plaintiff is entitled to construct a Residential Dwelling House on Plot No. 17/60 Block No. 03, Admeasuring 1028 Square Yards Faran Co -operative Housing Society on the basis of Approved Building Plan Dated 05-12-2022; and
b. Declare that any without notice interference, inspection by officers acting under the charge of the Defendant No. 03 as being illegal, unlawful; and
c. Permanently restrain the Defendants, persons acting under their charge or on the basis of their instructions, from without notice and/or illegally inspecting, interfering with the construction activities of
3 the Plaintiff and/or from taking any action adverse and/or coercive to the right of the Plaintiff to construct a Residential Dwelling House on the basis of Approved Building Plan Dated 05-12-2022.”
Interim orders are operative in Suit No. 309 of 2024 stating that no interreference should be caused to the Plaintiffs in their constructing on the Said Property in accordance with the approval given by the SBCA.
B. Suit No. 670 of 2024
3. This Suit has been maintained by the owner and a resident of a Plot No.70/11, Faran Cooperative Housing Society Limited, Karachi admeasuring 1000 square yards and which property is located in the same scheme in which the Said Property is located . The Plaintiff in Suit No.670 of 2024 has contended that:
(i) the approval that has been issued by the SBCA for construction on the Said Property is contrary to the provisions of Sub section (1) of section 6 of the Sindh Building Control Ordinance, 1979 (hereinafter referred to as the SBCO, 1979) read with the provisions of Karachi Building & Town Planning Regulations, 2002 (hereinafter referred to as the “KB&TPR, 2002”) and which does not permit two basements from being constructed on the Said Property;
(ii) that under cover of the approval that has been issued by the SBCA and which is for a residential house/bungalow, the Plaintiff in Suit No. 309 of 2024 is constructing either town houses or apartments on the Said Property; and
(iii) that the Plaintiff in Suit No. 309 of 2024 has in deviation of the approval sanctioned by the SBCA inter alia constructed on the compulsory open space and exceeded the permissible Floor Area Ratio that was required to be maintained by the Plaintiff in Suit No.309 of 2024 as per the approval accorded.
The Plaintiff in Suit No. 670 of 2024 seeks the following relief in that Suit:
“ … a. A declaration that the plaintiff has a right/ an expectation in the strict observance of the Karachi Building and Town Planning Regulations (2002);
4 b. A declaration that approval dated 05.12.2022 is in violation of the Karachi Building and Town Planning Regulations (2002);
c. A (consequent) declaration that Building Works being undertaken by Defendant No. 2 at Plot No. 17/60, admeasuring 1028 Square Yards, situated in Faran Cooperative Housing Society Limited, located in Haider Ali Road Karachi;
d. A Mandatory Injunction directing the defendants (including the persons acting under them, through them, and/or on their behalf) to demolish the structure erected on Plot No. 17/60, admeasuring 1028 Square Yards, situated in Faran Cooperative Housing S ociety Limited, located in Haider Ali Road Karachi;
e. A Mandatory Injunction directing Defendant No. 01 (including persons acting under it, through it, and/or on its behalf) to expedite hearing and adjudication of the Plaintiff’s pending appeal;
f. A permanent injunction restraining Defendant No. 02 (including persons acting under him, through him, and/or on his behalf) from raising further construction at Plot No. 17/60, admeasuring 1028 Square Yards, situated in Faran Cooperative Housing Scoie ty Limited, located on Hyder Ali Road, Karachi;
g. Grant of all other relief(s) deemed permissible, just, and appropriate in the given circumstances;
h. Grant cost of proceedings.”
Interim orders are operating in this Suit directing the parties to maintain status quo in respect of the construction and on account of a purported violation of the order CMA No. 10026 of 2024 being an application under Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973 has been maintained for contempt of court.
C. J.M No. 15 of 2024
4. J.M No. 15 of 2024 has been maintained by the Plaintiff in Suit No. 309 of 2024 under Sub -Section (2) of Section 12 of the Code of Civil Procedure, 1908 and which impugns two orders dated 13 June 2024 and 25 June 2024 passed in Suit No. 670 of 2024 on the grounds that those two orders were obtained by the Plaintiff in Suit No. 670 of 2024 through fraud and misrepresentation.
D. Issues
5. Both the abovementioned suits were listed before me on 18 July 2024 for hearing of applications and on which date Mr. Muhammad Ali Lakhani ha d concluded his arguments on various applications that were listed for hearing . The matter was listed again on 1 August 2024 and on
5 which date all the Counsels by consent appeared before the Court and stated that they were amenable to both the suits being decided on the basis of the material available on record. Accordingly and with their consent on 1 August 2024 the following issues were framed for adjudication.
“ 1. Whether the suit is maintainable? 2. Whether the approval has been accorded that has been accorded by the SBCA in accordance with the provisions of Sub -section (1) of Section 6 of the of the Sindh Building Control Ordinance, 1979? 3. In the event that the approval is found in deviation thereof what should the consequences be on the construction going on? 4. What should the decree be?”
E. Contentions of the Counsel for the Plaintiff in Suit No. 670 of 2024
6. Mr. Muhammad Ali Lakhani appeared on behalf of the Plaintiff in Suit No.670 of 2024 and drew the attention of the Court to the Plaint and contended that he had pleaded that under the cover of the approved plan issued by the SBCA the Plaintiff in Suit No. 370 of 2023 was constructing flats and not a residential bungalow on the Said Property and which violated the approval that has been accorded to him by the SBCA. In addition it was contended that the construction on the Said Property violated the permissible Floor Area Ratio approved in Regulation 25-2 of the KB&TPR, 2002 and that therefore the construction on the Said Property deviated from the approval accorded by the S BCA as the Compulsory Open Space that was supposed to have been left in accordance with the approval had been deviated from. When confronted with the fact that while the deviations from the approval accorded did exist, but as clarified in the Nazir’s Report dated 12 June 2024 such deviations were within the perimeters of the KB&TPR, 2002, Mr. Muhammad Ali Lakhani stated that his objection can be maintained in terms of the fact that the completed construction should at all times be in consonance with the perimeters as contained in the KB&TPR, 2002 and any deviation from that should be demolished.
7. Additionally, Mr. Muhammad Ali Lakhani alleged that the approval that had been sanctioned by the SBCA to the Plaintiff in Suit No. 309 of 2024 to construct two basements was issued in violation of Regulation 25- 2.2.4 of the KB&TPR, 2002 and which regulation reads as hereunder:
“ … One basement at residential plots having a minimum plot area of 400 Sq. Yds. shall be permissible by maintaining the Compulsory Open Space and max height of plinth shall not exceed 2 ft. – 6 inches from Ground level. Area of such Basement shall not be included in permissible FAR but betterment charges shall be applicable at rate of Rs.
6 50/= per sq. ft on covered area of basement or applicable rate per sq. ft whichever is less.”
On the basis of the above, he contend ed that as the construction is on a residential plot, only one basement is permitted and which , while correctly having been approved in the approval letter dated 5 December 2022 issued by the SBCA, runs contrary to the approved plan that has also been issued by the SBCA and wherein two basements, i.e. Lower Basement & Basement have been approved. He contended that the approval for the lower basement is therefore sanctioned illegally and which is liable to be demolished. Mr. Muhammad Ali Lakhani did not rely on any case law in support of his contentions.
F. Contentions of the Counsel for the Plaintiff in Suit No. 309 of 2024
8. Mr. Taimur Ali Mirza entered appearance on behalf of the Plaintiff in Suit No. 309 of 2024. He contended that the Plaintiff in Suit No. 309 of 2024 applied for and on 5 December 2022 obtained an approval from the SBCA to construct a lower basement plus Basement plus ground floor plus first floor structure on the Said Property and which was located on the slope of a hill on a non rectangular shaped plot. In addition to other regular charges, a s mandated by Regulation 25 -2.2.4 of the KB&TPR, 2002, a “challan” was issue d for payment of “betterment charges” and which w as also duly paid.
9. He submitted that as soon as construction commenced on the Said Property, a campaign of “ harassment, blackmail and coercion” was orchestrated by the Defendant No. 4 and the Defendant No. 5 in Suit No. 309 of 2024 as against the Plaintiff in that suit and which has ultimately led to the filing of the subject suits as well as CP No. D -1657 of 2024 , which was maintained by the Defendant No. 5 in the constitutional jurisdiction of this Court and in which the following ad interim order was passed on 5 April 2024 and which subsists to date:
“ … the SBCA will ensure that no illegal construction be done in violation of the Approved Building Plan. The SBCA should file para wise comments before next date of hearing highlighting the violations, if any and what action has been taken so far.”
To illustrate as towards the mala fides of the Defendant No. 4 and the Defendant No. 5 in Suit No. 309 of 2024 he contended that the approvals accorded by the SBCA to the construction on both of their properties showed that each of them had two basements that had been approved in
7 the structure that existed on each of the properties and which would also be violative of Regulation 25-2.2.4 of the KB&TPR, 2002 and having committed the same violation themselves they should be prohibited from maintaining Suit No. 670 of 2024.
10. On the maintainability of Suit No. 670 of 2024, Mr. Mirza relied on Section 20A of the SBCO, 1979 and which reads as hereinunder:
“ … Notice of the institution of Suit: No suit shall be filled agaisnt the Authority or any of its employees in respect of anything done or purported to be done by the Authority or such employee under this Ordinance except after expiration of sixty days next after notice in writing has been del ivered to or left at the office of the authority or employee as the case maybe.”
Contending that without first issuing a notice and allowing for the period of sixty days to expire, as mandated under Section 20A of the SBCO, 1979 a person could not maintain a suit as against the SBCA. He relied on a judgement of this court reported as Four Square Enterprises vs. Karachi Building Control Authority 1 in which while drawing an analogy as between Section 20A of the SBCO, 1979 and Section 80 of the Code of Civil Procedure, 1908 prior to its amendment in 1962, it was inter alia held that a suit was not maintainable before this Court until a notice as envisaged in Section 20A of the SBCO, 1979 was served on the SBCA and the requisite period had expired. He contended that as no notice had been served on the SBCA as mandated by Section 20 A of the SBCO, 1979 and as no evidence had been led to prove any mala fide on the part of the SBCA, Suit No. 670 of 2024 was barred.
11. Independent of the objection as to the maintainability of Suit No. 670 of 2024 on account of the bar contained in Section 20 A of the SBCO, 1979, Mr. Mirza also contended that the as Special Courts have been constituted under Section 18A of the SBCO, 1979 and which Spec ial Courts had the jurisdiction to take cognisance of the issues involved in Suit No. 706 of 2024, the jurisdiction of this Court was ousted on account of the bar contained in Section 9 of the Code of Civil Procedure, 1908. He relied on a judgment of the Lahore High Court, Lahore reported as Farooq Hamid and 2 others vs. Lahore Development Authority through Director General and 6 others 2 to indicate the types of violation which could be complained or agitated before the Special Courts or this court.
1 PLD 2000 Karachi 161 2 2006 YLR 1539
8 12. Relying on a decision of a Division Bench of this Court reported as Datari Construction Co. (Pvt.) Ltd. vs. A. Razak Admajee and others 3 he contended that to maintain a lis the Plaintiff cannot only show that a municipal rule or plan has been violated rather what had to be shown was that “real injury” was suffered by the persons whose interests and for whose protection the rules or regulations were framed and which was lacking in Suit No. 670 of 2024 and on account of which Suit No. 670 of 2024 was not maintainable. He also relied on the same decision to state that Suit No. 670 of 2024 was not maintainable as to maintain a suit for public nuisance compliance had to be made o f Section 91 of the Code of Civil Procedure, 1908 and which had not been made.
13. Regarding as to whether the Plaintiff in Suit No. 309 of 2024 was entitled to construct two basements and as to the interpretation of Regulation 25-2.2.4 of the KB&TPR, 2002, he contended that the role of the SBCA was to “regulate” construction in the Province of Sindh as could be ascertained from the language of preamble of that statute. While relying on various definitions of the word “regulate”, emphasis was placed to state that the role of the SBCA was “not to forbid but to regulate” and as such the SBCA could not “forbid the enjoyment of rights appurtenant to and/or arising from the specific, special dimensions of a particular piece of land.” Arguing the structure that was being raised was a private residential building, he referred to Sub -Section (1) of Section 6 of the SBCO, 1979 and which he contended when read with Sub-Section (l) of Section 3 of the SBCO, 1979 meant that construction could not be raised on a property that fell within the jurisdiction of the SBCA without a sanction being accorded by the SBCA under the SBCO, 1979 and which sanction also had to be made in conformity with the provisions of the KB&TPR, 2002.
14. He next referred to Section 7 of the SBCO, 1979 which statutorily prescribes the manner in which building plans are to be prepared and contended that by interpreting Regulation 25-2.2.4 of the KB&TPR, 2002 to restrict construction to only one basement, the powers as conferred on town planners, architects and engineers as detailed in that section would render Regulation 25-2.2.4 of the KB&TPR, 2002 as ultra vires of Section 7 of the SBCO, 1979 . He relied on the decision reported as Multiline Associates vs. Ardeshir Cowasjee4 In the Matter of Suo Moto Case No. 13 of 2009,5 Mian Ziauddin vs. Punjab Local Government and others6 and Pak Army
3 1995 CLC 846 4 PLD 1995 SC 423 5 PLD 2011 SC 619 6 1985 SCMR 365
9 Furnishing Stores vs. Ali Akbar Rizvi 7 in support of this proposition to state that the provisions of delegated legislation could not go beyond the scope of the parent statute and if found to do so would have to give way to their parent statute.
15. In respect of the interpretation of Regulation 25 -2.2.4 of the KB&TPR, 2002 he referred to Regulation 2.1.1 of the KB&TPR, 2002 which states as hereinunder:
“ … 2.1. In the regulations hereinafter contained, the following terms and expressions shall have the meanings hereinafter respectively assigned to them, unless such meaning be repugnant to or inconsistent with the context or subject matter in such words or expressions occur:
2.1.1. Words imparting the singular number shall include the plural;”
16. Referring to the expression “singular number” in Regulation 2.1.1 of the of the KB&TPR, 2002 when read with the definition of the expression “Basement” as given in Regulation 2-19 of the KB&TPR, 2002 he contended that the word Basement should be read as the plural “Basements” and which therefore when used in the context of Regulation 25 -2.2.4 of the KB&TPR, 2002 should permit the approval of two basements on the Said Property. Reinforcing this argument, he referred to Regulation 3 -2.10 of the KB&TPR, 2002 regarding the manner in which a plinth is to be verified and which prescribes that:
“ … every person who commences any building work except category I under these regulations, upon completion of plinth and in the case of basements upon the completion of foundations and shall give notice to authority in prescribed form ZP-4….”
Emphasising on the use of the expression “basements” in the plural, it was contended such use would add credence to the interpretation cast by him on Regulation 25-2.2.4 of the KB&TPR, 2002. He argued that:
a. “One” is a word; b. “Basement” is a word; c. “One Basement” are two words; d. Regulation 2 -1.1 states that words imparting the singular number shall include the plural; e. The word “single” is defined to mean individual; f. The word “number” means an arithmetical value, expressed by a word;
7 PLD 1985 Karachi 201
10 g. 01 is an arithmetical value. The spelling of 01 expressed as a word is “One”; h. It follow ed that the words One Basement shall include the plural whereby meaning that Regulation 2-2.2.4 may be read as two basements;
17. In addition, Mr. Mirza also put forward an argument that a basement should be considered as any floor below the plinth level and hence the lower basement and the basement are approved should be considered as one structure and not two independent structures . H e next referred to Regulation 9-14 of the KB&TPR, 2002 to state that Air Raid shelters and as per Regulation 10 -8.3 “underground car parks” could also be constructed below the floor level and hence it was conceivable that if only one one basement could be constructed, in addition to a basement additional structures could be conceived such as Air Raid Shelters and underground car parks and which would give the impression that more than one storey below the ground level could be approved under the provisions of the KB&TPR, 2002.
18. He pointed that the shape of the Said Property was not rectangular in nature and referred to Regulation 20 -2 of the KB&TPR, 2002 and which clarifies as hereinunder:
“ … Plot shapes shall generally be rectangular quadrangles; provided, however that where this would cause practical difficulties arising from irregular or unique features of a plot the developer may apply for an exception.”
Referring to this provision of the KB&TPR, 2002 he contended that the fact that the Said Property was not a rectangular quadrangle gave the Plaintiff in Suit No. 304 of 2024, the right to apply for an exception to be made for it from the “general standard ” applicable to rectangular quadrangle shaped plots.
19. He next referred to Regulation 2 -59 of the KB&TPR, 2002 which interprets the expression “Ground Floor” to mean:
“ … the floor of any structure built just above the plinth level.”
He next referred to Regulation 25-2.2.2 of the KB&TPR, 2002 which clarifies that two stories above the ground level can be constructed on plots the area of which is greater than 400 square yards. He contended that as the Said Property was carved out of a hill , the Plinth of the structure being
11 constructed on the Said Property should begin from the road level. Keeping in mind that the Plinth level has not been identified as being from the road level in the plan approved by the SBCA, he contended that the approval accorded can be altered by him under Regulation 3-2.4 (a) of the KB&TPR, 2002 and whereby the plinth level will be maintained above the lower basement and above which a ground plus two storey construction can be raised without violating the provisions of the K&TPR,2002 or in the alternative a plan can be submitted treating the lower basement as for as car parking and not as a basement.
20. Regarding the payment of bette rment charges as envisaged in Regulation 25-2.2.4 of the KB&TPR, 2002 while noting that the expression was not defined in those regulations, he referred to the definition of the same expression in the Karachi Development Authority Order, 1957 an d explained the context in which such betterment charges were payable under provisions of that statute.
21. Mr. Mirza further contended that the provisions of Section 6 of the SBCO, 1979 should be considered as directory and not mandatory therefore allowing for deviations from the KB&TPR, 2002 so as to allow more than one basement.
22. He further argued that by stating that in event that the Court came to the conclusion that this Court had the power to alter expressions so that a sensible meaning can be given to those expression and hence the word “one” in reference to a basement as contained in Regulation 25-2.2.2 of the KB&TPR, 2002 should be struck down as no such restriction has been imposed in Section 7 of the SBCO, 1979 and by giving such an interpterion no person/professional and/or…
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