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Petitioner: MOOSA BHUNJI (THROUGH LEGAL Heirs) VS Respondent: HASHWANI SALES & SERVICES LTD. JUDGMENT
Court Name: Sindh High Court Judge(s): Saleem Akhter Title:MOOSA BHUNJI (THROUGH LEGAL Heirs) vs HASHWANI SALES & SERVICES LTD.
JUDGMENT
Reported As: PLD 1982 Karachi 940 Result: Suit dismissed Judgment JUDGMENT This is a suit for permanent injunction praying that the defendants be prohibited and restrained from constructing more than ground floor and first floor building on plot No. 63, Garden East and demolition of the third storey on two blocks constructed thereon. The suit was originally filed with the first prayer but thereafter when the evidence had been almost concluded amendment application was filed and the second prayer was allowed to be added. Briefly the facts are that the leasehold right in plot of land bearing No: 62/1, Garden East, was purchased by the father of the plaintiff from Fidai Co-operative Housing Society and a bungalow was constructed thereon in 1952. After the death of the father of the plaintiff the said plot and building was transferred in the name of the plaintiff, his four brothers and mother, who are residing in the said premises. During the pendency of the suit plaintiff died and his two sons have been brought on record as plaintiffs. The plaintiff had pleaded that there is a custom of privacy. Prevalent in the locality since long as well as in the plaintiff's family. The building is in existence since 1952 and the plaintiff has been enjoying quietly and peacefully the said property with free access of air, use of light and right of privacy for more than 20 years. On the adjoining plot No. 63, Garden East which is on the northern side of the plaintiff's plot there was a two-storeyed bungalow owned by Mr. Sadiq Alvi who sold it to the defendants, who have demolished it and started constructing flats on the said plot. It has been pleaded that the lessees under the lease in the Garden East Area cannot raise more than two storeys inclusive of ground floor. The defendant No. 2 has been impleaded as he is licensed architect employed for the defendant's project. It has been pleaded that the defendant applied for permission to raise three-storeyed residential building on plot No. 63 which was illegally granted by
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the Deputy Com--missioner, South, Karachi on 2-12-1978. The defendants completed the ground floor and first floor on the three blocks and on two blocks they have constructed three storeys. Now on the third block which is adjacent and abutting to plaintiff's house full preparations have been made for further construction. . It is alleged that the permission granted by the Deputy Com-- missioner, South on 2-12-1978 is without jurisdiction and illegal. It has further been averred that the three-storeyed building will materially diminish the passage of light and air to the building of the plaintiff and would render the plaintiff's building unfit for comfortable living. It will also infringe the right of privacy enjoyed by the plaintiff for more than 20 years. The suit has been valued at Rs. 26,000 on which proper Court-fees has been paid. 2. The defendants have filed written statement in which it has been denied that there is any custom of privacy prevalent in the locality of the Garden East area and in the plaintiff's family. It has been pleaded that the plaintiff as well as the people of the locality are all Ismaili Khojas whose ladies do not observe purdah as such question of there being any custom of purdah does not arise. It has been pleaded that there are no windows or aperture on northern side from which the plaintiff's building could have received air or light except one window which serves as outlet for air, providing cross ventilation only. It has been denied that the plaintiff has ever enjoyed any right of easement or has prescribed any such right. It has been further denied that the lessees in the Garden East area are restricted under law to raise construction up to two storeys. It has been .Pleaded that in the Garden East area permission has been granted for the construction of multistoreyed buildings up to five floors. While denying that the third block of the proposed building is adjacent to the plaintiff's house it has been pleaded that the defendants have left open space as required under the rules. However, the plaintiff has left no side space and has covered it. 1t has been denied that the permission granted by the Deputy Commissioner, South is illegal or void. The construction plan was passed after scrutinizing it from all points of view particularly the flow of light and air. It has been denied that the plaintiff received light and air from northern side. It has been .Pleaded that the sanction granted under Sind Ordinance V of 1979 has not been challenged and as such the plaintiff is not entitled to any relief. It has further been stated that the plaintiff has undervalued the suit. 3. The defendant No. 2 has also filed a written statement stating that the defendant No. 2 is merely an architect and is not a necessary party. On the basis. Of these; pleadings following issues were framed; (1) Whether there is any custom of privacy prevailing in the locality and/or plaintiff's family as alleged? (2) Whether the alleged right of privacy is likely to be infringed as alleged? (3) Whether the plaintiff has acquired the right of easement : of air and light as alleged? (4) Whether the alleged right of easement of air and light is likely to be interfered on account of the construction of the third floor o1 defendants building so as to constitute cause of action for the plaintiff? (5) Whether there is any legal restriction on the right of defendants to build more than two storeys on their plot? (6) Whether the K. M. C. And the Authority under Building Control Ordinance, 1979, have sanctioned the plan for construction of the third floor in the defendant's plot? If so, its effect? (7) Whether the sanction granted by the K. M. t;. Is illegal and of no effect? (8) Whether the defendant No. 2, is a proper or necessary party? (9) To what relief if any, is the plaintiff entitled? (10) Whether the suit has properly been valued? (11) Whether the plaintiff is estopped from claiming the relief of demoli--tion of the 3rd storey on the two blocks ?
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4. In all there are 5 suits including the present one in which some common points are involved and they have proceeded together. With the consent of parties the evidence of official witnesses recorded in these suit shall read as common evidence in all the suits. The points involved in suit No. 560/79 are similar to this suit. Therefore such issues which are common in both the suits and have been exhaustively dealt with in Suit No. 560/79 will not be discussed in detail in the present suit and only reference will be made to the judgment in Suit No. 560/79. 5. Issue No. l.-This issue and the legal implications arising out of a claim of customary right of privacy has exhaustively been dealt with in Suit No. 560/79. 1 would only briefly refer to the evidence recorded in this suit. The evidence recorded in the present case is very brief and short. P. W. 2 Ali Bhai Lakhani, President of Fidai Cooperative Housing Society has stated that there is a practice of privacy in his society. He has further stated that in his community namely Ismaili Khoja community womenfolk go out to. Bazar and other public places and do not observe pardah. P. W. 3 Anwar Ali AM who is also a resident of the same locality has stated that "There was a practice of privacy in Garden Bast" but now people have started 'raising high buildings and it is affecting privacy. The plaintiff has stated that in the entire Garden East area custom of privacy is prevalent. In cross- examination he stated that in Ismaili Khoja community womenfolk do not wear burqa but they observe pardah. In Garden East area there are Ismaili Khojas as we as non-Ismailis. He has explained that there is a custom of privacy because people do not see the womenfolk of each other. He has further siated that there is custom of privacy because boundary walls in this area are very high and chowkidar sits outside the house. He further stated that custom of ' pardah exists in Garden East area and there is a custom of pardah in the entire city and one cannot see into the houses of others. This is the entire evidence on record to show that there is a custom of pardah prevalent in the Garden East. As will be seen the evidence isnot sufficient to establish that what was the nature of custom which is begin observed from time immemorial and is reasonable. It is an admitted position that Ismaili Khojas do not observe pardah. The fact that the boundary walls are high and chowkidars sit outside the gate does not prove customary pardah. These steps may be taken for more than one reason particularly for the safety of their house and property. According to rules also the bounary wall should at least be six feet high. It is to be noted that even from the second storey (ground plus one floor) which according to the plaintiff is the permissible height, one can overlook into the neighbouring bungalows although there are high boundary walls. In these facts the plaintiff should have established in what manner their privacy will be disturbed more than in the existing conditions when there are only two-storeyed houses. Mr. S. M. Sadiq the learned counsel for the defendants has rightly pointed out that the objection of the plaintiff amounts to this that you can see in his bungalow from the first floor but not from the second and third floors. The plaintiff has not been able to establish from evidence that from the newly constructed buildings the occupants would be able to overlook and see more than what can be seen if the buildings were up to first floor. The customary right of pardah as claimed by the plaintiff can only be accepted if it is established that the same is strictly observed by their family and community member since time immemorial and has been recognised and respected by the resident of the locality and is being voluntarily implemented. The standard of privacy as established by plaintiff's evidence is that they do not see the womenfolk of each other. This does not mean that a multistoreyed building built on the adjacent plot shall in any manner violate even such a custom if it exists at all. This custom seems to be more in the nature of self-restraint. The learned counsel for the defendant has relied upon Fazte Raziq's case PLD1980SC193,and has submitted that in view of the dictum laid down by the Supreme Court of Pakistan the . Plaintiff has failed to prove his case. Mr. Muhammad Shareef, the learned counsel for the plaintiff has referred to the evidence and has frankly submitted that although the custom of privacy is proved, in view of Fazle Raziq's case it will not be possible to get a relief on this issue but
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he maintained that in any event the plaintiff's right of privacy will be violated. The entire case-law on the point has been discussed in the judgment passed in Suit No. 560/79 and following the same I hold that in view of the evidence l and facts brought on record the custom of pardah and privacy has not been proved. 6. Issue No. 2.-Since it has been held that the plaintiff has failed to prove any customary right of pardah and privacy the question of infringement does not arise. However on facts the plaintiff has failed to prove that the plan has not been approved by the Building Control Authority and as will be discussed hereunder due consideration has been given while approving the plan for maintaining the right of privacy and easement of the adjoining neighbouring bungalows and with this view a certain angle has been maintain--ed in the Buildings. The defendants and their architect have stated this fact in clear terms. The defendant has further examined Imran an architect to prove that the plaintiff has constructed his bungalow right on the boundary wall adjoining the defendants plot without leaving any side space. This is a double-storeyed construction and there are no windows on the defendant's side. The object of bringing this fact on the record is to show that there exists an obstruction which completely blocks the view of their bungalow from the defendants flats. This witness has further stated that he had gone on the defendants building and examined whether the points mentioned in the map given by the plaintiff could be seen from there but his view was that it vas not possible to see in that manner. There is no evidence to show that the construction is of such a nature that the inner portions of the plaintiff's bungalows will be exposed to view. In view of these facts the plaints has not been able to prove this issue. Mr. Muhammad Shareef the learned counsel for the plaintiff has urged that Imran is an obliging witness and has come on the instructions of the defendants and their Advocate and has acted gratuitously. It may be correct that this witness has not charged any profes--sional fee but it does not mean that whatever he has stated is false. It is not necessary that any person appearing to be an interested witness may not give a correct evidence. However, evidence of such person should be read with caution and reservation. This witness has produced sketch and with the help of plan explained the existing situation. I am not inclined to reject his evidence. My finding is in the negative. 7. Issues Nos. 3 and 4.-The learned counsel for the plaintiff has not seriously pressed these issues and has frankly stated that as there is an open side space left between the two constructions which is above 15 feet wide the question of infringement of right of air and light will not arise. 8. Issues Nos. S & 6.-The learned counsel for the plaintiff has most vehemently argued this issue. .It may be briefly mentioned here that in Garden East area lease of plot had been granted by the Collector. The learned counsel for the plaintiff has contended that the restriction placed on the right of the defendants to build not more than two storeys on their plot arises from condition No. 2 of the Lease -and the Circular of the year 1938 issued by the of Collector of Karachi. The condition No. 2 in the lease Deed provides that "a Lessee shall submit to the Collector and obtain his sanction to a plan and specification of the buildings to be erected before any building operations are commenced". Relying upon this condition the learned counsel for the plaintiff contended that the Lessor is keeping a control over the Lessee's right to build the construction and in exercise of that right the Collector had issued a Circular in the year 1938. According to the learned counsel for the plaintiff the object of issuing the Circular was to formulate any uniform policy in the entire area and that as it is nobody's case that it was not known to the lessees, the Circular is valid, legal and binding upon the defendants. On the other hand, Mr. S. M. Sadiq the learned counsel for the defendants has contended that neither in the scheme nor under the Lease Deed any restriction has been imposed which prohibits defendants from constructing beyond two storeys. He has further contended that unless plan is submitted to the Collector no general condition can be imposed by way of a circular as power under condition No. 2 of the lease should be exercised in
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individual cases and not collectively. According to Mr. S. M. Sadiq the general conditions could be issued .Only by way of rule under section 214 of the Land Revenue Act and not otherwise. He further con--tended that the circular violates the terms of scheme and therefore it is not applicable. To appreciate these contentions brief reference can be made to the scheme as it has been discussed in detail in Suit No. 560/79. The scheme of Garden Quarters was made under Town Planning Act, 1915. The scheme does not put any condition to the height of building or number of storeys. The lease was issued under the provisions of Bombay Land Revenue Code, 1879 which merely imposes a restriction that the lessee will submit to the Collector and obtain his sanction to plan and specifications of the building to be erected before any building operation is commenced. Building operation cannot commence without the sanction of the Collector. The Collector has therefore to grant a sanction to a plan and specifications of the buildings which may be submitted to him. In - this process the Collector could have imposed any reasonable condition. But the question to be seen is whether any condition could have been imposed by virtue of a circular issued by the Collector in 1938. This circular provides that no plan should be submitted for construction more than ground plus one storey. As is obvious this circular has been addressed to the Architects in the form of request. It is not an order to the Lessees or a condition in exercise of condition No. 2 of the Lease Deed. From the opening words it is clear that it was intended to be a request to the Architects to adopt a uniform policy in submitting the plans and specifications. It has not even been addressed to the relevant authorities for seeking enforcement. It is, therefore, doubtful that this circular could have been issued in pursuance of condition No. 2. The learned counsel for the defendants has pointed out that from the evidence on record it has fully been established that from the year 1964 permissions have been granted by the Collector for construction of Multi- storeyed Buildings in Garden East area. From the record of the Collector relating to Garden East it is estab--lished that for 1964 multi-storeyed buildings have been allowed to be constructed on 11 plots. In the platinum Society which is situated opposite Fidai Society across the road there are 13 blocks of multi-storeyed buildings consisting of ground plus two storeys. From these facts it is distinctly clear that the Collector himself in this particular area is not enforcing this circular. Mr. Muhammad Shareef, the learned counsel for the plaintiff has contended that permissions to these plot owners were given as a special permission but this does not make any material difference. At least it is established that there exist large number of multi-storeyed buildings in the Garden East area and many permissions for such construction have been granted in spite of the restrictions as pleaded by the plaintiff. Mr. Shareef the learned counsel for the plaintiff has relied upon the case of Vibhuti Narain Singh v. Improvement Trust, Banaras and others AIR 1954 All. 520In this case U. P. Town Improvement Trust Act provided that no person shall erect or re-erect add or alter any building beyond the prescribed alignment of the side space without the written permis--sion of the Trust. The Improvement Trust had directed by the resolution that no construction should be permitted which did not leave 7J feet land on either side of the street. When the petitioners submitted the plan the Improvement Trust required certain alterations -and amendments which was challenged in writ petition and it was held that as the right of the petitioner to make constructions was taken away altogether by section 29(1) (b) except to the extent to which he might obtain written permission of the Improvement Trust, the exercise of that right would he limited to the extent of the permis--sion so granted. Relying on this portion of-the judgment the learned counsel for the plaintiff contended that the right of the defendants to construct the building has been taken away subject to the permission of the Collector and such permission is contained in the circular. This contention does not seem to be correct because restrictions imposed in that case were by virtue of an Act and a resolution of the Improvement Trust. In the present case no provision of law has been quoted to show that any restriction has been imposed
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on the number of storeys. . Reliance has been placed on the circular of 1938 which has no binding effect as held in Suit No. 560/79. 9. The learned counsel for the defendants has contended that the scheme framed under Sind Town Planning Act, 1915 contains provisions regulating and governing the development scheme which shall prevail except on Federal or Provincial Acts. There is no regulation or any provision of law limiting the number of storeys or height of the buildings. From 1933 the function of building control has been vested in the Karachi Municipal Corporation which approved the building plan from Town Planning and Building Control points of view. Now under the Sind Building Control Ordinance this function has been vested in K. D. A. This is obvious from the fact that when the building plans are submitted to the Collector for obtaining his sanction under the lease he sends them for approval of Town Planning & Building Control Authorities and after their approval sanction is given by the Collector. In these circumstances it seems correct that the circular has no relevance or binding effect from the points of view of Town Planning and Building Control as these aspects are governed by statutes, Rubs and Regulations framed or which may be framed for that purpose by the relevant authorities. 10. The learned counsel for the defendants further contended that the conditions imposed by the Collector do not amount to covenants running with the land. Following the judgment passed in Suit No. 560/79 I held that the conditions imposed by the Collector are not restrictive covenants running with the land. 11. The next contention of the learned counsel for the plaintiff is that the plan under which construction is being made has not validly been Dassed by the relevant authorities. In this regard the facts as brought on record in evidence may be narrated. On 7th August, 1978 the defendants submitted plan for Deputy Collector's permission to construct three --storeyed building. This application was referred to Architect Control Department K. M. C. Who by their letter dated 23-11- 1978 addressed to Assistant Commissioner, granted no objection for erection of ground plus two upper floors from planning point of view subject to the condition that final approval shall be granted after no objection from adjoining owners for erection of second floor is produced. On 2-12- 1978 the Deputy Commissioner passed the following order :- "The lessees of plot No. 63 Garden East Quarter, Katachi are granted permission to construct three- storeyed purely residential buildings including the ground floor, leaving a minimum distance of 16 feet and 34 feet between the two buildings on the abovesaid plot. Each storey shall comprise four (4) flats and two (2) flats, i. e. In all twenty-four (24) flats, each bearing three bedrooms, one dining room and one drawing room and other amenities. This permission is subject to the rules and regulations now in force or hereafter enforced by the Government. No construction of any kind including a balcony is permitted in the compulsory open space from ground to sky. The lessees have also to provide one fire-hydrant on every floor as per the approved design of the Chief Fire Officer, K. M. C. The lessees have also to maintain the privacy of the neighbours. Necessary prior permission to start the construction must be obtained from the Dy. Commissioner, Karachi as per terms of the lease after getting the building plans approved from K. M. C. As usual before the construction is started. This permission would be withdrawn for the violation of any condition of the lease, rules, regulations or this permission and further action for the forfeiture of the plot will be taken." The Architect Control K. M. C. By his letter dated 18-12-1979 called upon the defendants to produce No-Objection Certificate from the owners of the adjoin--ing plots. The defendant No. 1 on 12th March, 1979 wrote to the Architect Controller K. M. C. That their plan may be approved for ground floor plus one storey for the time being and approval for third storey may be considered after obtaining N. O. C. Accordingly an approval for the ground plus one storey was granted on 15-3-197)
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by K. M. C. And on 18-3-1979 the permission was issued Exh. 5/1 page 89). On 17th March, 1979 Sind Building Control Ordinance, 1979 was enforced and the Town Planning and Architect Control Department of K. M. C. Was transferred to Karachi Development Authority. Under section 4 of Sind Building Control Ordinance, 1979 notification was issued appointing Karachi Development Authority as an Authority under the Sind Building Control Ordinance, 1979. Since then K. D. A. As an authority is vested with the jurisdiction to grant approval of the building plans. 12. On 20th March, 197) the defendants addressed a letter to City Deputy Collector for obtaining no objection certificate as K.M.C. Had granted approval on 18-3-1979. The Assistant Commissioner by his letter dated 8-11-1979 (Exh. 8/5 pages 23) granted permission…
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