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Petitioner: R. G. SEHWANI COOPERATIVE HOUSING SOCIETY LTD. VS Respondent: HAJI AHMAD AND 3
Court Name: Sindh High Court Judge(s): Saleem Akhter Title:R. G. SEHWANI COOPERATIVE HOUSING SOCIETY LTD. vs HAJI AHMAD AND 3
JUDGMENT
Reported As: PLD 1983 Karachi 11 Result: Appeal dismissed Judgment JUDGMENT ' By this judgment Suits No, 1002/79, 644/79 and 82/80 will be disposed of. Suit No, 1002/79 has been filed by R. G. Sehwani Co-operative Housing Society Limited against three defendants and K. D. A. For declaration that the approval of the building plan by defendant No, 4 on 1-9-1979 for construction of multi-storeyed building (ground plus four storeyes) on Plot No, 23/1 New No,. 366 JM. Sehwani Colony, Jamshed Quarter, is illegal and without lawful authority and for perpetual injunction against defendants No, 1 to 3 restraining them from raising the construction (1) covering more than 1/3rd of the total area of the plot and (ii) beyond two storeyes i. e. Ground and first floor. 2. Briefly the facts are that the plaintiffs bad entered into an agreement with Karachi Municipal Corporation on 27-6-1930 for leasing out 21816.1/2 sq. Yards in blocks 23-26 in Survey Sheet J. M. 2, Jamshed Quarters, Karachi for building residential houses by its members on various plots and one plot was reserved for amenity purposes. It is alleged that the agreement inter alia provided that not more than 1/3rd area of any of the said plots shall be covered with building nor shall any building constructed thereon consist of more than 2 storeyes i. e. Ground and first floor. It is alleged that after the plaintiffs hereinafter called 'the Society', had complied with the terms of the aforesaid agreement, Karachi Municipal Corporation granted a lease for 99 years to them of the said plots which inter alia contained the aforestated clauses. The Society then allotted plots to its members subject to the terms and conditions contained in the agreement of lease and every member/allottee was aware of the conditions contained in the lease deed. The said covenants according to the Society run with the land and all the residents are bound by the rules and bye- laws of the society. G. S. Kotwani was the original sub-lessee of Plot No, 23/1 (New No, 366 JM) who
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had built a house with a covered area of 296 sq. Yards, G. S. Kotwani became evacuee and the said property was acquired -and under Displaced Persons Compensation and Rehabilitation Act it was transferred to one Dr. L. R. Khan. A permanent transfer deed dated 1st June, 1952, was also issued in his favour. Subsequent to the death of Dr. L. R. Khan this property devolved on his legal representatives who were admitted as joint members of the society and necessary mutation was made in the record of the Society. On 5-3-1979 the Society gave No-Objection to the said owner to sell their property within the framework of the Society's rules and bye-laws and terms and conditions of lease and the buyers also giving an under taking in writing to comply with the same. On 17-3-1979 the defendants Nos. I to 3 purchased the plot Bearing No, JM 366 (Old Survey No, 23/1) measuring 1186-1/2 sq. Yards with construction thereon and their names were entered in the Survey Register. The defendants No, 1 to 3 neither applied nor became members of the Society and according to the Society they are not entitled to the privilege of the society members. The existing structure on the plot was pulled down in July, 1979, with the object of raising multi-storeyed building. The lessees of the neighbouring plot Bearing No, 367, namely, Mst. Hawabai and Mat. Farida served a notice on the Society complaining against the apprehended action defendants Nos. 1 to 3 of raising a multi-storeyed building, covering more than the permitted area which infringed their rights of easement. On 29-7-1979 defendants Nos. 1 to 3 were called upon by the Society to show-cause why action should not be taken against them for violation of terms and conditions of the lease but without any result. In August, 1979, Mst. Hawabai and Mst. Farida filed Suit No, 644/79 for restraining defendants Nos. 1 to 3 from raising any construction on the said plot beyond two storeyes. On 1-9-1979 the defendants obtained approval of their building plan of 5 storeys flats i. e. Ground plus 4 storeyes from K. D. A. The grievance of the Society is that it is in breach of conditions of the lease inasmuch as the ground floor has been reserved for commercial purposes. It is further alleged that as the defendants Nos. 1 to 3 are not the members of the Society they cannot construct the house on the plot. It has further been alleged that the multi-storeyed building cannot be raised as it is in violation of the declaration made by the Martial Law Authorities and the conditions imposed by Martial Law Administrator, Zone C, and further that it is in vicinity of Quaid-e-Azam's Mazar and that it will infringe the neighbour's rights of light, air and privacy. It has further been stated that as the plan is in violation of the terms of lease, the land granted to the Society will result in forfeiture of lease by K. M. C. On 5-11-1979 the Society called upon the defendants 1 to 3 to stop the construction but without any result. On 11-11-1979 the plaintiffs made representation to the Director, Master Plan & Environmental Control of K. D. A. For cancellation of the approved plan and restraining the defendants. Nos. 1 to 3 from continuing construction but with no result. The plaintiffs then filed the present suit. The defendants Nos. 1 to 3 filed their written statement in which preliminary objections were taken that there is no privity of contract between the Society and the defendants Nos. 1 to 3 and there is no legal right vested in the Society entitling it to sue, that the Society are not entitled to challenge the building plan approved by defendant No, 4 and that the suit filed is unauthorised and the plaint does not disclose under whose authority it has been filed. It has been pleaded that majority of the plot holders in the Society have not been abiding by the terms of the lease and the Society have acquiesced in the said behaviour of the plot holders. The allotment of plot to G. S. Kotwani and ultimate transfer to Dr. L. R. Khan from the Settlement Authorities has not been denied. It has not been denied that defendants Nos. 1 to 3 are not members of the Society and it is submitted that they are not subject to the obligations of members of the Society. It has been stated that the suit is mala fide and has been filed at the instigation of the neighbours who have also filed separate suits. The constitution of the managing committee of the Society has been termed as illegal and unauthorisedly constituted. The notices issued by the Society have been termed as illegal, unauthorised and mala fide. It has been pleaded that the approval granted by K. D. A. Is legal and proper and K. M. C. Has no objection to
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the construction of the proposed building. The grounds on which the relief is being sought has been denied and it has particularly been denied that the easement rights of the Society or the neighbours will be infringed. It has been pleaded that in fact the entire area has already become commercial and numerous commercial buildings, shops exist in the vicinity, and the shops constructed by the defendants have already been disposed of. It has further been averred that the majority of the plots comprising the Society and houses constructed thereon cover 2/3rd of the area and even the so-called secretary of the Society has herself covered 2/3rd area of the plot in her occupation. In view of these averments the claim has totally been denied. 3. The defendants No, 4 in their written statement have pleaded that by virtue of powers conferred by law they have approved the building plan of the defendants Nos. 1 to 3 it has been stated that the objection, if any, should have been taken by K. M. C. Which is a necessary party and has not been sued. It has further been stated that the condition for not raising construction beyond the original permissible limits stands withdrawn by virtue of Notification No, SO (VI) 15 (32)/73 dated 1- 6-1976 issued by the Government of Sind whereby construction beyond the original permissible limits was being permitted against levy of fee of K. M. C. At the rate of Rs, 15 per sq. Yard of the total area of the plot per additional floor proposed to be constructed. No limit has been placed on the power of the K. D. A. In matter of approval of plan with regard ,to change of user of the ground floor from residential to commercial. It has further been stated that according to the approved plan the covered area would be slightly more than 1/3rd area of the plot. The grounds on which the plaintiffs have challenged the approval of the plan has been denied. 4. In Suit No, 644/79 the plaintiffs have their plot of land bearing No, JM 367 Old Survey No, 23/2 JM Quarter, Karachi adjacent to the plot of defendants Nos. 1 to 3. The plaintiff's main grievance is that the construction of multi-storeyed building is against the lease and building agreement. The plaintiffs have further averred that such a building will interfere with plaintiff's right of easement of light, air and privacy which they have been enjoying for more than 20 years. The plaintiffs have prayed that the defendants be restrained from raising any building higher than two storeyes (ground and first floor). 5. Suit No, 82/80 has been filed by Mst. Farida, one of the plaintiffs in Suit No, 644179, who are owners of Property No, JM 367, Old Survey No, 23/2. JM Quarter, Karachi. All the allegations made in the aforestated two suits have been repeated. The plaintiff has alleged that in Suit No, 644/79 defendants Nos. 1 to 3 on 19-8-1979 gave an undertaking not to construct beyond two storeyes. However it transpired on 1-9-1979 that defendants Nos. 1 to 3 got building plan approved from K. D. A. For construction of multi-storeyed commercial building. According to the plaintiff the approval was illegally obtained ex pane without notice to the plaintiff and against the terms of lease and building agreement. It has been pleaded that the proposed building will adversely affect the plaintiff's title, interest and right of easement of air and light and privacy. The plaintiff has prayed for injunction restraining the defendants 1 to 3 from raising any construction higher than two storeyes and from converting the same for purposes other than residential. 6. In all the three suits defendants Nos. 1 to 3 are the same persons and the allegations and prayer in all the suits are the same. In all the three suits following issues were framed. Besides the evidence separately led in every suit the statement of official witnesses recorded in Suit No 372/79 and 644/79 has been read as evidence in all the suits. (1) Whether the suit is barred by reason of section 20 of the Sind Building Control Ordinance, 1979? (2) Whether the suit is undervalued? (3) Whether the plaintiffs are estopped from raising the claims set out in the plaint? (4) Whether the terms and conditions of the lease Agreement and lease deed are binding upon the defendants?
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(5) Whether construction of more than two storeys (ground plus one) and conversion of plot to Commerical and covering more than 1/3rd area of plot is wrongful and illegal? (6) Whether the plans approved by K. D. A. Are valid or against the principles of natural justice? (7) Whether the transfer of the plot in question to persons other than members of the Society is in violation of the terms of the lease? (8) Whether the construction of the building amounts to violation of the claimed rights of easement of light, air and privacy? (9) Whether the permission of Karachi Municipal Corporation was obtained or was necessary in law? (10) Whether the defendants purchased the plot with knowledge of the lease and or with the prior consent of the plaintiffs and if so what is the effect? (11) Whether Suit No, 1002/79 has been validly filed by an authorised person? (12) Whether there is any privity of contract between the plaintiffs and defendants? (13) What should the decree be? Issue No, 1.-The defendants have not seriously pressed this issue. The only contention raised is that as K. D. A. Acting as Authority under Sind Building Control Ordinance, 1979, have approved the plan, any suit challenging it is barred under section 20 of the Sind Ordinance. ' This contention is misconceived. Section 20 provides indemnity to the Government of the Authority or any person in respect of anything done or intended to be done in good faith under the Ordinance. It only protects the Government, the Authority and its Officers from being sued for acts done in good faith in discharge of their duties. My finding is in the negative. Issue No 2.-Not pressed. Issue No, 3.-The defendants Nos. 1 to 3 have relied on the fact that before purchasing the property the defendant No, 1 had discussed with the plaintiffs in Suit No, 644/79 and 82/80 who had verbally given permission to construct a building comprising of ground floor and four storeys. He has further stated that during the talk he had informed them about the commercial nature of the building. In his cross-examination he has stated that he had talked to Abdul Rahim the husband of Mst. Hawa Bai (plaintiff No, 1 in Suit No, 644/79) as he is head of the family of the plaintiffs. Nothing has been stated about the Society in this regard. These facts can hardly operate as estopple against these plaintiffs. My finding is in the negative. Issues Nos. 4 and 5.-Sehwani Co-operative Housing Society hereinafter referred to as "the Society" was formed in the year 1930 exclusively for Sehwani Hindu Community and according to the Articles of Association the members were to be of Sehwani Community and affairs was to be conducted by a committee of Shewani Hindus. On 27-6-1930 "the Society entered into an agreement with K. M. C. Under which blocks Nos. 23 to 26 in survey Sheet 3M were granted to them. The Society was required to erect dwelling houses and buildings with drainage within a period of 84 months from 13-1-1930. It also provided that not more than 1/3rd area of any of the plots was to be covered and the building should not consist of more than ground plus first floor. On completion of building the Society was entitled to separate lease in respect of each of the plots. K. M. C. Accordingly granted lease to the Society in respect of the plots involved in these suits. The relevant clauses of the lease are reproduced hereunder: "7. The Lessee shall not (a) without the previous consent in writing of the Standing Committee of the Lessors divert the plot to uses other than those for which it is intended i.e other than residential purposes (b) shall not construct buildings on more than one-third the area of the said plot or construct or reconstruct any building or add to any existing building a structure so as to make such building consist of more than two storeys (i. e., the ground and the first floor) and (c) make any alterations or additions to any existing building without complying with the building bye-laws and
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rules of the Lessors passed under the Karachi Municipal Act of 1933, or any other statutory law for the time being in force. 8. If the lessee or his sub-lessee contravenes the provisions of the lease it shall be in the discretion of the Lessors to cancel the lease, and on such cancellation the Lessee will have no further claim whatsoever against the Lessors, except at the option of the Lessors (such option to be exercised within six months of such) cancellation to receive the capital value of the building standing on such plot, failing the exercise of such option to have permission to enter upon the premises within six months after the expiry of the said period of six months, to move such buildings, and on failure to remove the same or any portion thereof within the said period of six months, such building materials or such portion thereof as is not so removed shall belong absolutely to the Lessors." ' Plot No, 24/1, new No, 366 was allotted to Kotwani and sub-lease was granted in his favour but a copy of the sub-lease has not been produced. Kotwani was declared evacuee and all the interests in Plot No, 366 became evacuee and the property formed part of the compensation pool. On 4-12- 1959 under Provisional Transfer Order it was transferred to Dr. L. R. Khan and finally on 21-1-1962 P. T. D. Was issued in his favour. On his death he was succeeded by Mst. Nayyar Sultana and two others who by a conveyance deed dated 17-3.1979 transferred it to defendants 1 to 3. According to Mr. A. H. Pirzada, the learned counsel for defendant No, 3 the said purchase was made without any notice of the alleged restrictive covenant and for valuable consideration of Rs, 4,00,000. In these circumstances the learned counsel contends that the defendants Nos. 1 to 3 are not bound with the terms and the restrictive conditions imposed by the lease deed. 7. The admitted position is that Kotwani was a sub-lessee. Although the sub-lease has not been produced the fact remains that the said sub-lessee had constructed his house on the said plot which would not have been built without the approval of K. M. C. In these circumstances it can be presumed that the sub-lessee had complied with the conditions of the lease deed. 8. Mr. Abdul Hafeez Pirzada the learned counsel for the defendants No, 3 and Mr. Khalid Anwer for defendants Nos. 1 & 2 have contended that as the property became evacuee and was transferred under the provisions of Displaced Persons (Compensation & Rehabilitation) Act, 1958, the string with the lessor was raptured and a new relationship was created between Dr. L. R. Khan and the Government independent of any relation or condition mentioned in the lease deed or the sub- lease. According to the learned counsel as the transfer has been made by operation of law free from all encumbrances therefore the only conditions which would have governed the proprietary rights of Dr. L. R. Khan were the conditions laid down by the P. T. D. And since the defendants 1 to 3 purchased the property from the legal heirs of Dr. L. R. Khan they were only bound by the conditions which were binding upon Dr. L. R. Khan and not the conditions which were binding upon the plaintiffs or its sub-lessee. 9. Mr. A. A. Fazeel the learned counsel for the plaintiffs contended that on publication of a notification under section 4(3) of Pakistan Administration of (Evacuee Property) Act, 1957, only the rights, title and interest the evacuee were extinguished and the property was to vest in the Central Government free from all encumbrances. Mr. Fazeel referred to the case of Muhammad Khan v. Chief Settlement & Rehabilitation Commissioner (1), wnere similar provisions in Displaced Persons (Land Settlement) Act, 1958, were construed in the following manner: "The words "shall vest wholly and absolutely in the Central Government free from all encumbrances" appear to have been added to subsection (3) of section 4 of the Act, merely by way of abundant caution and the intention really seems to have been to provide that whatever right, title or interest was possessed by the evacuee owner in the property which is the subject of a notification, would stand extinguished with its publication". This provision contemplates that on publication of notification acquiring any. Property the same shall absolutely vest in the Central Government free from all encumbrances and all the rights, title
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and interest in the evacuee shall be extinguished. This creates a bar on an evacuee from deriving an right, title or interest in the property. The right, title and interest of Kotwani was that he was a sub-lessee and owner of the house constructed on the plot B After the notification he could not claim any right as a sub-lessee or owner. The Central Government thus acquired Kotwani's property rights. However, the conditions which were attached by K. M. C. Under the lease or sublease did not amount to the right, title or interest of Kotwani. They were the rights of K. M. C. And therefore enforceable at its option. 10. Mr. A. A. Fazeel the learned counsel for the plaintiff contended that as the aforestated conditions of the lease amount to restrictive covenant and run with the land, the same are binding upon the defendants No, 1 to 3 Mr. A. H. Pirzada, the learned Y counsel for defendant No, 2 contended that a restrictive covenant runs with the land for the benefit of the lessor and it should be absolute. However, it can be waived expressly or by necessary implication. The stipulations of the lease are no doubt enforceable by K. M. C. It has to be determined whether any third party or adjacent neighbour can also enforce it. Lease is an agreement between two parties and therefore only a party to the agreement can enforce it. In the present case the building agreement provided that the Society could allot the plots to its members who shall continue to be liable for performance of several stipulations until the grant of lease to Society. The lease provided that if the lessee or sub- lessee contravenes the provisions of lease it shall be in the discretion of the lessor to cancel the lease. It is thus clear that these covenants of the lease relied upon by the plaintiffs cannot be enforced by them. It is not the case of the plaintiffs that the Society is part of any scheme framed under the Sind Town. Planning Act, 1915, or any other statute which is materially being changed thereby creating nuisance and seriously affecting their rights. 11. Under the aforesaid clauses of the lease the lessee or sub-lessee with the previous consent of K. M. C. In writing can divert the plot to uses other than residential and can also construct on more than 1/3rd area of the plot. Such a clause has been interpretted to mean that the landlord cannot withhold permission on unreasonable grounds. Mr. A. H. Pirzada has referred to Haroon E. H. Jeer v. Sind Industrial Trading Estate Ltd. (2), where following observation was made: "In the revisional jurisdiction I can only say that such a covenant is (1) PLD 1962 SC 284 (2) PLD 1969 Kar. 227 not a novation and there is ample authority for the proposition that a landlord cannot withhold sanction on unreasonable grounds. In case the landlord does so, it is open to the tenant either to proceed with the construction or to file a suit for declaaration. These are well-established principles recognized under the English Law. The law on this point, as stated in Paragraph 1284 in Halsbury's Laws of England, Volume 23, is to the following effect:- `A breach of an express covenant against making alterations or erecting new buildings will be enforced by injunction. In general, the covenant will be construed so as to forbid alterations which would affect the form of structure of the building. A covenant against making alterations without licence or consent is, however, deemed to be subject to a proviso that, if the proposed alteration constitutes an improvement, such licence or consent is not to be unreasonably withheld'. ' The learned author, in Paragraph 1286, under the heading 'Tenant's remedy where consent is unreasonably refused', has observed as follows:- `An unreasonable refusal of consent entitles the tenant either to make the improvements without any further request for consent, or to bring an action for declaration that the landlord has unreasonably withheld his consent." ' K. M. C. Therefore, could not unreasonably withhold the consent. In these circumstances it is difficult to hold that the aforestated covenants could be termed as restrictive covenants running with the land.
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12. Mr. Abdul Hafeez Pirzada the learned counsel for the defendants No, 3 has alternatively contended that even if there is a condition or restrictive covenant in the lease deed, the same cannot be enforced against the defendants by the plaintiff. According to the learned counsel if at all there is any grievance it should be made by the K. M. C. And not by the plaintiff. In this regard it has been further submitted that K. M. C. Has expressly or impliedly by its conduct waived these conditions and, therefore the plaintiff has no right to enforce them. The evidence brought on record proves that the defendants Nos. 1 to 3 have obtained approval for the building plan from K. D. A. This was brought to the notice of K. M. C. As well and the defendants Nos. 1 to 3 have paid Rs, 53,370, as additional floor charges which are recovered by the K. M. C. Under the Sind Government's Notification of 1976. A sum of Rs, 9,240, has been charged as conversion fee for converting the user of land from residential to commercial. These facts confirm that K. M. C has no objection to the construction of multi-storeyed building on more than 1/3rd of the area of the plot and also to its commercial use It has further…
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