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Petitioner: MUHAMMAD AMIN CHAPAL VS Respondent: KARACHI CANTONMENT BOARD, KARACHI
Court Name: Sindh High Court Judge(s): Gulzar Ahmed Title: MUHAMMAD AMIN CHAPAL vs KARACHI CANTONMENT BOARD, KARACHI Case No.: Civil Suit No.328 of 2003 Date of Judgment:2004-07-30 Reported As: 2004 YLR 3215 Result: Suit dismissed
JUDGMENT
JUDGMENT ' The plaintiff has filed this suit for declaration, permanent and mandatory injunction with the following prayer:-- "(i) to declare that the building plans submitted by the plaintiff on 22-4-2000 are deemed to be approved by operation law; (ii) to grant Mandatory Injunction directing the defendant to approve the Building Plan submitted by the plaintiff on 22-4-2000; (iii) to grant permanent injunction restraining the defendant from implementing the Notice dated 12th March, 2003 of demolition of the building constructed on Plot No.221, I.E. Lines, Dawood Pota Road, Saddar, Karachi, known as the Chapal Navinta Mall and Luxury Apartments or from interfering with the construction work thereon or restraining them from taking any other adverse action against the plaintiff; (iv) cost of the suit; (v) any other further relief or relief(s) that this Honourable Court may deem fit and proper in the circumstances of the case," ' The facts in brief are that the plaintiff is a sole proprietor of Messrs Chapal Builders the owner of Plot No.221. E.I. Lines, Saddar, Karachi. The. Firm Chapal Builders carries on business of constructions of buildings of multi storeyed flats, apartments, shops, residential and commercial buildings at Karachi. The Plot No.221. E.I. Lines, Saddar, Karachi was purchased by the plaintiff from one Syed Muzamil Hussain vide agreement of sale dated 29-8-1998 and on the same day the said Syed Muzamil Hussain also gave an Irrevocable General Power of Attorney to the plaintiff. The said agreement of sale and the said power of attorney allowed the plaintiff to apply for approval from
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defendants to construct on the said plot apartments, shops, offices, showrooms, commercial plaza and display centre. The plaintiff with letter dated 2-10-1998 submitted to the defendant building plan for the proposed building to be constructed on the said plot. The building plan contemplated a building of 16 floors consisting of 168 flats plus 62 degree pent house with a height of 150 feet. The Military Estate Officer vide its letter dated 6-10-1998 gave his no objection from land point of view for the construction of commercial building on the said plot. On 10-11-1998 plaintiff deposited with the defendant scrutiny fee of Rs.6,64,443 for the approval of the building plan. The defendant through its letter, dated 13-11-1998 informed the plaintiff that the building plan has been approved architecturally but permission of the building plan would be accorded only after receipt of soil testing report, structural calculation/drawings and NOC for services A like electricity, water and gas with further advice that construction work should not be undertaken prior to the issue of municipal approval. The defendant through its letter dated 21-11-1998 granted permission to the plaintiff for advertisement, sale and booking of shops and flats in the project which was named as "Chapal Navinta Mall and Luxury Apartments". The plaintiff then issued advertisement of the project in newspapers. The plaintiff received enthusiastic response who booked 541 shops and flats and received payments. The defendant through its letter dated 29-1-1999 pointed out certain discrepancies in the calculation sheet and structural drawings and also pointed out that structural documents have not been signed by the Wetting Engineer. The plaintiff submitted wetting Report dated 22-2-1999 to the defendant. The plaintiff through letter dated 1-2-1999 requested the defendant to grant permission to start work/digging on the said plot. The defendant through its letter dated 5-3-1999 granted municipal approval of the building plan and allowed construction of the building as per sanctioned plan. The plaintiff vide its letter dated 3-5-1999 requested the defendant to allow construction of arcade. Thereafter plaintiff commenced construction of the building on the said plot with an arcade and constructed the building up to 5th floor by middle of 1999. It is alleged that on the assurance of the officers of the defendant that the plaintiff will be allowed construction of the building in accordance with the building plan submitted by him on 2- 10-1998, the plaintiff completed the sale of the said plot and entered into a Conveyance Deed on 30-6-1999. It is alleged that the defendant through its letter dated 19-7-1999 allowed construction of the arcade with the condition that no construction whatsoever should be made over the arcade. It is alleged that this condition of not allowing construction over the arcade by the defendant was contrary to its own bye-laws and departmental practice. It is alleged that defendant through its letter dated 30-8-1999 and dated 4-11-1999 raised objection on certain aspect of the building which was replied by the plaintiff vide its letters dated 16-10-1999 and 1)711-1999:- It is alleged that the plaintiff submitted formal notice dated 18-4-2000 alongwith building plans to the defendant for the regularization of the building plans and it is stated that it was received by the defendant on 22- 4-2000. The plaintiff further served - a statutory call attention notice under section 181(6) of the Cantonments Act, 1924 (to be called the Act) dated 14-6-2000 on the defendant alleging that 50 days i.e. In access of statutory period have expired since the submission of building plan dated 22- 4-2000 and requesting the defendant to sanction the building plan within 15 days. It is alleged that the defendant did not communicate to the plaintiff any objection to the building plan nor gave approval of it and in terms of the provision under which call attention notice was given, it would be deemed to have been approved. The plaintiff however, wrote another letter dated 30-6-2000 to the defendant stating therein that the building plans submitted by the plaintiff stood sanctioned unconditionally. It is alleged that on 5-7-2000 plaintiff received defendant's pre-dated letter viz. 24-6-2000, with this letter the defendant returned to the plaintiff revised/regularization plan with objections noted therein. The plaintiff being aggrieved of this letter of the defendant wrote its letter dated 10-7-2000, wherein plaintiff took the stand that in terms of the statutory notice the building plans stood sanctioned/ approved unconditionally. The defendant thereupon asked the plaintiff to
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submit plan showing unauthorized construction in distinct colour restricting number of storeys as per plan approved by the Board. The defendant through its letter dated 8-9-2000 called the plaintiff to stop unauthorized construction. The plaintiff gave detail explanation but the defendant vide its letter dated 1-11-2000 called upon the plaintiff to demolish and remove the unauthorized construction raised on the said plot. Plaintiff once again through its letter dated 26-11-2000 sought permission for regularization of the revised building plan against which the defendant through its letter dated 13-12-2000 called upon the plaintiff to demolish unauthorized construction over the arcade etc. The plaintiff again vide its letter dated 9-2-2001 submitted another building plan to the defendant for the consideration of the Board. The defendant vide its letter dated 9-3-2001 asked for the experts opinion but it is stated that until the filing of this suit no opinion was received. The plaintiff approached various higher authorities but to no avail. Plaintiff received from the defendant notices dated 28-11-2001, 29-11-2001 and 20-12-200/ against which plaintiff filed appeal before Director Military Land and Cantonment Karachi Region. The Director Military Land and Cantonment Karachi dismissed the appeal vide his order dated 20-3-2002. It is alleged that on 3-4-2002 applications were invited for regularization of the project through advertisement in Daily Mang by the defendant in response to such advertisement, the plaintiff submitted regularization plan of the building but the defendant refused to consider such application of the plaintiff on the ground that the plaintiff building was under construction and did not come within the purview of the notice published in the newspaper. Plaintiff again approached higher authorities but to no avail. Finally on 12-3-2002 and 15-3-2002 plaintiff received notices to demolish the unauthorized construction of the building on the ground that the Board has rejected the revised building plans submitted by the plaintiff. It is alleged that the plaintiff has acquired vested right to raise commercial building in accordance with the building plans submitted by the plaintiff. Consequently the suit herein was filed with the prayer as already noted above. ' The defendant has contested the matter and filed its written statement in which the defendant has denied the allegations made in the plaint and has prayed for dismissal of the suit. The following consent issues were adopted by the Court:-- (1) Whether the building known as Chapal Navinta Mall is being constructed contrary to law from its very inception? (2) Whether a building Chapal Navinta Mall is being constructed according to revised plan dated 22 April, 2000 as submitted by the plaintiff, as alleged. By the defendant, contrary to section 178-A, Cantonment 'Act 1924 or KCB Building Bye-Laws 1983 can be made subject to approval under section 181(6) of the Cantonment Act 1924 including Bye-Law No.12 of the said KCB Building Bye- Laws 1983? (3) Whether the plaintiff could advertise for sale of units in a 16 storey building when he had submitted a plan for G-1-9 dated 7 September, 1998 for approval? (4) Whether the other buildings in the area are in excess of plot ratio 1:6 and have covered Arcades in particular Naz Plaza, Cambridge Shopping Mall and Jeddha Gold Center have been regularized? (5) Whether the defendant dis Criminated between the plaintiff and the other builders including of Naz Plaza, Cambridge Shopping Mall and Meddah Gold Center? (6) Whether the plaintiff discriminated against the defendant by not approving the revised plan dated 22-4-2000 which is allegedly contrary to KCB Building Bye-Laws 1983? (7) Whether the plaintiff or the defendant has violated the order dated 1"5 April, 2003 and committed Contempt of Court of this Honourable Court.- (8) What should the decree be? ' On framing the issues the parties counsel made statement that the matter can finally be adjudicated on the basis of pleadings and documents filed by them and no oral evidence will be required. The matter was posted for hearing of final arguments.
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' I have heard the arguments of Mr. Kamal Azfar, the learned counsel for the plaintiff and of Mr. Naim-ur-Rehman, the learned counsel for the defendant. I have also gone through the record. ' The learned counsel for the plaintiff has made the following submissions:-- (i) That the plaintiff has submitted building plans with notice dated 18-4-2000 for the regularization of works carried out without permissions the defendant having failed either to object to or approve the building plans, the same will deemed to have been approved unconditionally, under section 181(6) of the Act. (ii) That the defendant has regularized construction over arcade of Naz Plaza, M.A. Minnah Road, Karachi which gave to the plaintiff legitimate expectancy of such regularization who too has raised construction over arcade and the defendant is liable to regularize such construction of the plaintiff. (iii) That the defendant by regularization of unauthorized construction in:-- (b)Meddah Center; Naz Plaza; (c)Minnah Avenue; (d)International Center; (e)Cambridge Luxury Apartments; Panorama Center; (g) APWA Center; and (h) Elphi Gulleria has established departmental practice of regularization of unauthorized construction and such departmental practice is binding on the defendant and it should also be followed in the case of the plaintiff. (iv) That Bye-Law 136 of Building Bye-Law of the Cantonment Board Karachi empowers the defendant to regularize the unauthorized construction and such power vesting in the defendant should be exercised in the case of the plaintiff. (v) That the plaintiff building of 16 storeys has height of 150 feet which height is permitted by Bye- Law 15 of the Building Bye-Laws of Cantonment Board Karachi as both the roads in front and back of the building are of 100 feet therefore, there is no illegality in construction of 16 storey building. ' He has relied upon the following case law in support of his submissions:-- (1) Municipal Committee Hoshiarpor v. Darshan Lal AIR 1946 Lah.413; (2) Sterling Computer Limited v. M & N Publications Ltd. AIR 1996 SC 511; (3) Ram Naraindas v. Cantonment Board Delhi 84; (4) Pacific Multi National v. I.-G. Police PLD 1992 Kar. 283; (5) Arif Builders and Developers v. Government of Pakistan PLD 1997 Kar. 627; (6) Balochistan Construction Co. v. Port Qasim Authority 2001 YLR 2716; (7) Patrosin Products v. Federation of Pakistan 2001 CLC 1412; (8) Shir Hamainder Singh Arora v. Union of India AIR 1986 SC 1527; (9) Iftikhar Siddiqui v: Clifton Cantonment Board PLD 1998 Kar. 373; (10) Puri Terminals Ltd. v. Port Qasim Authority 2003 CLD 153; (11) Ramana Day aram Shetty v. International Airport Authority of India AIR 1979 SC 1628; (12) Tata Cellular v. Union of India (1994) 6 SCC 651; (13) Shaukat Ali v. Government of Pakistan PLD 1997 SC 342; (14) Chairman Regional Transport Authority v. PMIC PLD 1991 SC 14. ' On the other hand the learned counsel for the defendant has made the following submissions:-- (i) That the authority to approve building plans is vested in the Cantonment Board by virtue of sections 178-A, 179, 180 and 181 of the Cantonments Act, 1924 and the defendant has approved the building plan of the plaintiff under such provision for two basements, ground plus nine floors building. (ii) That in the building plan submitted by the plaintiff there was no mention of arcade and the building plan was approved without arcade. However, on plaintiff's subsequent request, he was
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allowed construction of arcade with specific provision that there will be no construction over the arcade but the plaintiff has illegally raised construction over the arcade. (iii) That the building plan submitted by the plaintiff under Form-7 of the Building Bye-Laws of Cantonment Board Karachi for regularization of Unauthorized construction altogether showed a different building from that which was approved by the defendant. Such building plan could not be approved and was rightly rejected by the defendant. (iv) That Form-7 of the Bye-Laws applies to completed buildings and not to the buildings under construction. (v) That since very inception the plaintiff has made violation of approved building plan in respect of which notices of demolition of unauthorized construction were given by the defendant to the plaintiff but the plaintiff unabatedly continued illegal construction on his own and did not comply with any of the notices of the defendant. (vi) That even in spite of consent order dated 24-2-2000 passed in C.P. D-1678 of 1999 for removal of unauthorized construction, the plaintiff did not abide by that order and did not remove unauthorized construction. He also referred to the Nazir Report dated 27-6-2003 and letter of Imran Associates dated 20-6-2003 showing violations of the approved plan made by the plaintiff. (vii) That the notice 181(6) of the Cantonments Act, 1924 was misconceived and inapplicable to the case of the plaintiff. (viii)That the plaintiff has not approached the Court with clean hands and that the plaintiff is not entitled to any relief and suit be dismissed. ' He has relied upon the following case law in support of his submissions:-- (1) Cantonment Board, Rawalpindi v. Sh. M. Saeed and others 1995 MLD 883; (2) Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others 2002 SCMR 312; (3) Messrs Flying Kraft Paper Mills (Pvt.) Ltd. v. Central Board of Revenue and others 2000 SCMR 945; (4) Miss. Farzana Qadir v. Province of Sindh 2000 PLC (CS) 225; (5) Food Corporation of India v. Messrs Kamdhenu Cattle Feed Industries 1993 SCMR 2158; (6) Council of Civil Service Unions v. Minister for the Civil Service (1984) 3 All ER 935 Ch D; (7) Dr. Fozia Amber v. Government of Punjab PLD 2003 Lah 741; (8) Halsbury Laws of England Volume 1(1) page 144 (Paragraph 78); (9) Craig, P.P. (2003) Administration Law London, Sweet and Maxwell at pages 812, 832; (10) Brind v. Secretary of State for the Home Department (1991) 1 All ER 720; (11) Associated Provincial Picture Houses Ltd. v. Wednesbury Corp. (1947) 2 All ER 680; (12) Habib v. Haji Muhammad PLD 1970 Kar 495; (13) Abdul Qayoom v. Ziaul Haq PLD 1962 (W.P) Kar 334; (14) Chittly on Contract, Vol. 1 Page 1263 1 1266; (15) Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon 1994 SCMR 2189; (16) United Bank Ltd. v. Golden Textile Mills Ltd. 2000 CLC 819; (17) Government of Pakistan v. Facto Belarus Tractors Limited 2000 SCMR 112; (18) Western Fish Products v. Penwith DC (1981) 2 All ER 204 CA; (19) Anjum Irfan v. Lahore Development Authority PLD 2002 Lah. 555; (20) Ardeshir Cowasjee v. Karachi Building Control Authority (KMC), Karachi 1999 SCMR 2883; (21) Messrs Excell Builders v. Ardeshir Cowasjee 1999 SCMR 2089; (22) Abdul Razak v. Karachi Building Control Authority PLD 1994 SC 512; (23) Director of School Education, Hyderabad Region, Hyderabad v. Provincial Ombudsman 1999 MLD 2856; (24) Muhammad Riaz v. Karachi Metropolitan Corporation 2000 CLC. 1107; (25) Fayazuddin v. Karachi Building Control Authority 2000 YLR 1161; (26) Aurangzeb v. Messrs. Sui Southern Gas Company Ltd. 2003 YLR 1673;
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(27) Rizwan Waid v. Presiding Officer, Special Court (Offences in Bank) PLD 2004 Kar. 28. ' As regards the first contention of the learned counsel for the plaintiff, it may be noted that the plaintiff has submitted initially building plans to the defendant vide its. Letter dated 2-10-1998. With this letter, plaintiff has submitted three blue prints of its proposed building. The blue print of ground floor plan which is attached at page 85 of the record shows a building having two basements, ground floor and 1 to 14 floors and thereafter 'a floor showing a pent house. There is no mention of arcade in the 10 feet compulsory open space in front and back of the building. In the blue print of the Ist to 14th floor plan at page 87 of the record shows building of 1 to 15 floors and a pent house above the 15th floor. Again there is no mention of arcade in the 10 feet compulsory open space in the front and back of the building. The third blue print is a typical floor plan for 1 to 15th floor at page 89 of the record and there is no mention of arcade in the 10 feet compulsory open space of the building. The plans were forwarded by the defendant to the Military Estate Officer, Karachi Circle, Karachi for his consideration and examining it from land point of view. The Military Estate Officer through his letter dated 6-10-1998 gave his no objection from land point of view for the construction of commercial building on the plot in question. After necessary processing, the defendant vide its letter dated 5-3-1999 approved the building plan which approval was for two basements, ground plus 9 floors building -with 10 feet compulsory open space on all the four side of the building. It seems that the plaintiff has submitted the proposed building plan for the construction of two basements, -ground plus 9 floors to the defendant which ultimately was approved by the defendant. With the approval of the building plan vide letter dated 5-3-1999, the defendant also granted permission to the plaintiff for starting construction of the building in accordance with the approved plan. This approval of the building plan by the defendant appears to have been accepted by the plaintiff and he commenced construction of the building. The plaintiff in the process of raising construction started making deviations from the approved plan and in this regard the defendant received complaint of one Haji Ahmed husband of the owner of adjacent Plot No.220, E.I. Lines, Dr. Daudpota Road, Saddar, Karachi. The complaint of the said Haji Ahmed was that the plaintiff was raising construction over the compulsory open space shown in the approved plan. Mst. Mamila wife of the said Haji Ahmed also filed a Constitutional Petition No.D- 1678 of 1999. In this petition a consent order dated 24-2-2000 was passed directing the removal of the unauthorized construction. The plaintiff however, continued with the construction of the building and realized that in the building plan it has submitted to the defendant there is no provision for making of an arcade in the front and back of the building and therefore, through his letter dated 3-5-1999 made a request to the defendant for making of necessary correction in the approved plan and granting of approval for construction of the arcade of 7 feet 6 inches. The defendant through its letter dated 19-7-1999 allowed construction of arcade on the ground floor in front and back of the building with condition that no construction whatsoever should be made over the arcade and the building plan endorsed with approval of construction of arcade of 7 feet 6 inches was sent alongwith this letter. In this approved plan with arcade the building shown is of up to 9th tloor. The plaintiff made further deviations from the approved plan in the building which was brought to his notice by the defendant vide letters 30-8-1999 and 4-11-1999 demanding demolition and removal of unauthorized construction. The plaintiff replied the said two notices by his two letters namely dated 16-10-1999 and 11-11-1999 wherein he explained and justified the deviations made from the approved building plan. It seems that while the building was in the process, of construction, plaintiff submitted to the defendant a Form-7 dated 18-4-2000 under Bye-Law 12 of the Building Bye-Laws of Cantonment Board Karachi for regularization of works carried out without permission and attached with such form three blue prints of revised building plan. The revised building plan inter alia shows a building of two basements, ground plus 16 storeys with arcade of 9
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feet 1 inch towards Raja Ghazanfar Ali Khan Road and of 9 feet 4 inches towards Dr. Daudpota Road. It also show Chajja/Projection towards both sides of the building. As against total covered area of 2,25,630 square feet shown in the approved plan, the revised plan shows total covered area of 3,32,530.42 square feet. It seems that the defendant made no response to the Form-7 submitted by the plaintiff. The plaintiff then through his letter dated 14-6-2000 gave call attention notice under section 181 of the Act to the defendant. The plaintiff then wrote letter dated 30-6-2000 in which he informed the defendant that as the plaintiff has not received sanction of building plan within 15 days of receipt of the call attention notice, the revised building plans stands sanctioned unconditionally in items of section 181(6) of the Act. It is alleged by the plaintiff that on 5-7-2000 he received a back dated letter dated 26-6-2000 of the defendant by which the revised building plan was returned with objections noted in the said letter. ' The learned counsel for the plaintiff during course of his argument has read the provision of section 181 of the Act while the learned counsel for the defendant has read sections 178-A, 179, 180, 181 of the Act and also Bye-Law 12 of Building Bye-Laws of the Cantonment Board Karachi. For convenience sake . The provision of sections 178-A to 181 of Act are reproduced below:- 178-A. Sanction for building:---<>No person shall erect or re-erect a building on any land in Cantonment, except with the previous sanction of the Board, nor otherwise than in accordance with the provisions of this Chapter and of the rules and Bye-Laws made under this Act relating to the erection and re-erection of buildings. 179. Notice of new buildings:-- (1) Whoever intends to erect or re-erect any building in a Cantonment shall apply for sanction by giving notice in writing of his intention to the Board. (2) For the purposes of this Act, a person shall be deemed to erect or 4-erect a building who:--- (a) makes any material alteration or enlargement of any building, or (b) converts into a place for human habitation any building not originally constructed for that purpose, or (c) converts into more than one place for human habitation a building originally constructed as one such place, or (d) converts two or more places of human habitation into a greater number of such places, or (e) converts into a stable, cattle-shed or cow-house any building…
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