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Petitioner: DATARI CONSTRUCTION CO. (Pvt) Ltd. VS Respondent: A. RAZAK ADAMJEE and others
Court Name: Sindh High Court Judge(s): Syed Haider Ali Pirzada, Muhammad Hussain Adil Khatri Title: DATARI CONSTRUCTION CO. (Pvt) Ltd. vs A. RAZAK ADAMJEE and others Case No.: High Court Appeals Nos. 55 and 58 of 1991 Date of Judgment:1992-12-31 Reported As: 1995 CLC 846 Result: Order accordingly
JUDGMENT
JUDGMENT ' SYED HAIDER ALI PIRZADA, J.---These two High Court Appeals and cross-objections are inter- connected as they are directed against a judgment dated 20-12-1990 and decree dated 20-12-1991 passed by our learned brother Abdur Rahman, J. In Suit No, 570 of 1988, we intend to dispose of the same by this judgment. ' The brief facts leading to the filing of the above two appeals are that respondents Nos. 1 and 2 in H.CA. No, 55 of 1991 filed the aforesaid suit in which the plaintiffs had prayed for the following reliefs:- "(a) that the defendant No, 1 are not entitled to commercialize the plot in the Clifton Area as it would create a public nuisance; especially in the absence of supporting basic infra-structure, over population and shattering of the calm and peaceful atmosphere of the area known as Kehkashan, KDA Scheme No, 5 as stated in para 16 above; (b) permanent injunction restraining defendant No, 1 from erecting- multistoreyed building which would create over population a public nuisance and shattering of calm and peaceful atmosphere as stated in para 16 above; (c) any other relief this Hon'ble Court deems fit." ' The abovementioned suit for public nuisance was filed by the plaintiffs under section 91 of the C.P.C. With the permission of the Advocate-General Sindh Karachi. (Messrs A. Razak Adamjee and Abdul Hamid Adamjee are hereinafter referred to "the plaintiffs" and M/S Datari Construction Company (Pvt) Ltd. Is hereinafter referred as "defendant No, 1" and Karachi Building Control Authority is hereinafter referred as "defendant No, 2"). It is averred in para 1 of the plaint that "the plaintiffs alongwith other persons some of whom are mentioned in Annexure 1 hereto own and
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occupy residential premises in the area known as Kehkashan, KDA Scheme No, 5, Clifton Karachi". It is the case of the plaintiffs that sometime in 1982 defendant No, 2 without consulting the residents of the Clifton area as a general policy decided to permit commercialization of the areas of Karachi. Pursuant to this policy a number of commercial buildings were created between Clifton Bridge and the crossing of main Clifton Road with Khayaban-e-Jami and some areas towards Mid East Hospital up to the canal along the main Clifton Road. In 1984 Messrs Shaista Estate (Pvt) Limited applied and obtained permission from defendant No, 2 to commercilize plot No, G-7, Block 9, KDA Scheme No, 5. However, upon the representation of the residents of the Clifton area, the permission was suspended against which M/s. Shaista Estate (Pvt) Ltd. Filed a Constitutional Petition No, D- 2480/85 which was allowed in regard to which two appeals were filed in the Supreme Court namely Civil Appeal No, 8-K of 1987 and Civil Appeal No, 9-K of 1987. The said Constitution petition related to cancellation of permission and did not affect the rights of the plaintiffs and others residing in the Clifton area filed a suit for public nuisance against M/s. Shaista Estate (Pvt) Ltd. And defendant No, 2 with the permission of the Advocate-General which is pending in this Court being Suit No, 54 of 1987. . ' It is the further case of the plaintiffs that at the end of May 1988 the plaintiffs and some of the persons mentioned in Annexure 1 came to know that defendant No, 2 had granted another permission to defendant No, 1 to commercialize an amenity plot measuring 3546.66 square yards with shops on the ground floor and flats on the other floors. This plot No, G-19 measuring 3546.66 square yards in Block 5, KDA Scheme No, 5, Clifton, Karachi is immediately opposite plot No, G-7, Block 9, KDA Scheme No, 5. The plaintiffs alongwith some others mentioned in Annexure 1 sent a notice to defendant No, 2 under section 20-A of the Sindh Building Control Ordinance, 1979 (hereinafter called the 'Ordinance') through their Advocate requiring them to reject the plan submitted by defendant No, 1 restraining them from constructing a 9-storeyed building on the plot as it would not only deprive them of services as mentioned therein but would create a public nuisance and was contrary to Building Regulations of the defendant No, 2 itself. These conditions would be caused as there is no basic infra-structure to service highrise buildings in the Clifton area. This notice was delivered by hand and defendant No, 2 vide notice also dated 18-6-1988 withdrew permission of the plan of defendant No, 2 and required them to resubmit an amended plan under the Town and Planning Building Regulations. This was done before construction had even started by defendant No, 1. In response to the said notice, the defendant No, 1 sent a notice under section 20-A of the Ordinance to defendant No, 2 requiring them to restore the permission and without waiting for mandatory 60 days immediately filed a suit for declaration and injunction in the Court of Vlth Senior Civil Judge (East) Karachi being Suit No, 888 of 1988 against defendant No, 2 restraining them from cancelling the plan granted earlier on 26-5-1988. Alongwith this suit the defendant No, 1 also filed an application under Order XXXIX, Rules 1 and 2 read with section 151 C.P.C. Praying that defendant No, 2 be restrained from cancelling the original approved plan and to permit the construction on the plot; upon which the said Vlth Senior Civil Judge (East) Karachi granted ex parte ad interim injunction as prayed. The plaintiffs averred that they and some other persons came to know about the suit for declaration and injunction. They applied to be made parties under Order I, Rule 10, C.P.C. This application was rejected saying that as the joinder of plaintiffs and others would change cause of action and that the plaintiffs and others were at liberty to file a separate suit against defendant No, 1. The plaintiffs had filed Constir tion Petition No, D-772 of 1988 against the VIth Senior Civil Judge (East) Karachi and the defendants. This Constitution petition was dismissed. The plaintiffs averred in para 16 of the plaint that "the plaintiffs and other persons mentioned in Annexure I are apprehensive of the host of problems that would arise by the construction of multi-storeyed building which tantamount to public nuisance. These inter alia include loss of privacy, over-population, traffic hazards, bad roads, congestion, smoky and polluted
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environment, creation of insanitary condition, break-down of essential services like electricity, gas, telephone and considerable reduction of water, to say nothing of secrity problems that are present in all overpopulated areas. In addition the calm and peaceful atmosphere to which the residents are entitled to preserve would also be shattered. Consequently the plaintiffs decided to file representative suit was filed earlier by them (Suit No, 54/87) to restrain the defendant No, 1 from creating these conditions. Plaintiffs averred in para 21 of the plaint that as the plaintiffs and the persons mentioned in Annexure I had no justiciable right regarding the grant and cancellation of the plan of defendant No, 1 by defendant No, 2 but who having a strong personal interest in the same have filed Constitution Petition No, D-773/88 against the Vlth Senior Civil Judge (East) Karachi and the defendants. However, in order to restrain the defendant No, 1 from creating a public nuisance the plaintiffs have filed this representative suit on behalf of themselves as well as persons mentioned in Annexure I to restrain them from creating a public nuisance and to prevent defendant No, 1 from depriving them of the services and creation of hazards as stated in para 16 above". In the facts and circumstances stated above, the plaintiffs filed above suit for declaration and injunction after obtaining necessary permission from the Advocate-General Sindh. ' The appellant/respondent No, 1 contested the suit by filing written statement. Defendant No, 1 contended that the suit is misconceived and not maintainable; (2) the suit and reliefs claimed are barred under the Specific Relief Act (3) the suit is bad for non-joinder of Karachi Development Authority, the lessors of the property in question and (4) the suit is barred under the principles of estoppel, waiver and acquiescence. Defendant No, 1 denied that the Clifton area was planned entirely as a residential area. With regard to contents of para 16 of the plaint, the said defendant denied the contents of para 16 as being incorrect and also irrelevant and immaterial to the controversy in the present suit. The said allegations relate to KDA and the Government of Sindh. No cause of action in respect of the said allegations has arisen against defendant No, 1. Defendant No, 1 also contended that in so far as the allegations relating to alleged over-population, traffic hazards, bad roads, congestion, smoky and polluted environment, creation of insanitary condition, break down of essential services like electricity, gas, telephone, considerable reduction of water and security problems and alleged deprivation of calm and peaceful atmosphere is concerned, these are matters concerning the Karachi Development Authority; Karachi Municipal Corporation and the Government of Sindh whose duty it is to provide the basic infrastructure to citizens/residents of Karachi and the alleged grievance of the plaintiffs in this regard in the present suit against defendant No, 1 is obviously misdirected, misconceived and not maintainable. In paragraph 21 of the written-statement, it is submitted that present suit is misconceived and not maintainable. The defendant 1 stated in paragraph 21 of the written-statement that "it is denied that defendant No, 1 is creating a public nuisance as alleged". It is further contended that the suit is not representative in nature as legal requirements have not been completed. The allegation relating to public nuisance and alleged deprivation of services and alleged hazards are misconceived, incorrect, unwarranted and unjustified. It is further pleaded that "it is, however, correct that the plaintiffs have no justifiable right in relation to grant and/or the withdrawal of the approval/NOC accorded to the defendant No, 1". ' Defendant No, 1 pleaded that the suit and the reliefs claimed in the suit are barred under the Specific Relief Act. The suit be dismissed with special costs. ' On the pleadings of the parties, the following consent issues were framed:- "(1) Whether the suit is misconceived and not maintainable? (2) Whether the reliefs claimed are barred under the Specific Relief Act? (3) Whether the suit is bad for non-joinder of K.DA. As defendant? (4) Whether the suit is barred under the principles of estoppel; and waiver and acquiescence?
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(5) Whether the proposed construction of defendant No, 1 on their property G-19, Block 5, K.DA. Scheme No, 5, Clifton Karachi will constitute a public nuisance for the reasons stated in the plaint? (6) Whether the defendant is liable to be restrained from raising construction of their property in accordance with the approval dated 15-3-1988 and 26-5-1988? (7) What is the effect of Annexures X and X/1 to the written-statement of defendant No, 2? (8) Whether the construction of the proposed multi-storeyed building will violate the privacy of the plaintiffs and other neighbours? (9) To what relief(s), if any, is the plaintiff entitled? (10). What should the decree be? ' The plaintiffs, in support of their case, have examined P.W. 1 Khalid Mukhtar, P.W. 2 Navaid Hussain, P.W. 3 Aijaz Ahmad, P.W. 4 Navaid Zafar, P.W. 5 Abdul Razaq Adamjee, P.W. 6 Iqbal Haider, P.W. 7 Zahid Adamjee, P.W. 8 Muhammad Hussain and P.W. 9 Younus Hashim Bengali. Defendant No, 1 has examined, in support of its case, D.W. 1 Sardar. Ikramullah, D.W. 2 Abdul Shafiq, D.W. 3 Muhammad Hafizullah, D.W. 4 Nandoo Ganesh, D.W. S Abdul Majeed Khatri, D.W. 6 Saleem Ahmad, D.W. 7 Syed Mahmood Qadri, D.W. 8 Manzoor Raza Zaidi, D.W. 9 Sharafat Ali, D.W. 10 Syed Shahnawaz Shah, D.W. 11 Muhammad Siddique Essa, D.W. 12 Muhammad Mohsin Jaffery, D.W. 13 Qazi Arshad Jamal and D.W. 14 Abdul Ghaffar. ' Learned Single Judge of this Court who tried the suit found issue No,4 in the negative. Upon Issues Nos. 1 and 2, he held that suit is maintainable. He held that relief under prayer (a) is not available to the plaintiffs but this finding is made subject to the undertaking given by Mr. Liaquat Merchant. He further held that "whereas no anticipatory injunction can he granted as a general rule, but it can certainly be granted in anticipation where the plaintiffs are able to show that from the apprehended act, nuisance is practically certain to result". Upon Issue No, 5, he held that the plaintiffs have not proved or established the case of absolute nuisance. He further held that "the Court has to see that the construction of a building does not exceed reasonable limits. If it exceeds reasonable limits, it is likely to cause the various problems mentioned above resulting in public as well as private nuisance". In this view, he held that defendant No, 1 having acted upon the approval of building plans acquired a legally vested right and such vested right cannot be taken away in any arbitrary manner. Upon Issue No, 7, he held that "the other letter dated 11-8-1988 from the Government of Sindh to the Director-General, K.DA. Advising the latter to withhold all N.O.Cs/sanctions in respect of the construction of defendant No, 1 on the said plot were granted much earlier. Past and closed transactions which have been acted upon, cannot be suspended, withheld or withdrawn in law". In this view, he held that "in any event the matter of privacy in the fast developing city of Karachi and the social environment in Clifton area is nonexistent". Upon issues Nos. 9 and 10, he held that "defendant No, l's structure of hollow plinth ground floor plus five storeyes is in order and does not call for any interference, the additional two floors i,e, bth and 7th floors specially approved by Director General, K.D.A. On 26-5-1988 are liable to be declared unlawful and violative of the public and private easements". The suit was, accordingly, decreed in favour of the plaintiffs to the extent that defendant No,1 shall not construct beyond the hollow plinth plus five storeys, and granted such declaration and injunction. ' Mr. M. Naimur Rehman, learned counsel appearing for the appellants in H.C.A. No, 58 of 1991 raised the following contentions:- (1) The case was not dealt with as a public interest litigation. (2) No plan can be approved contrary to the provisions of section 6 of the Sindh Building Control Ordinance, 1979 and the Rules and Regulations framed by the Master Plan Environmental Control Department, K.DA. (3) Merely the fact that a number of highrise buildings have come up in this area, it is no justification that on that basis other illegal highrise buildings will be allowed to be constructed.
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(4) Defendant No, 1 did not personally lead the evidence themselves and therefore cannot lead any evidence in support of their case. (5) The learned Single Judge has not appreciated the evidence on the record. (6) The privacy of the residents of the area has not been taken into consideration. (7) If the approved plans are contrary to regulations, it cannot be said that to have taken care of easement and nuisance to the residents of the area. ' On the other hand, Mr. Liaquat Merchant, learned counsel appearing for defendant No, 1 submitted that the suit as framed is not maintainable. ' Defendant No, 1 has raised the construction in accordance with the approved plan. The Ordinance, Regulations and Resolutions of Karachi Development Authority do not create any obligation in favour of the plaintiffs against defendant No, 1 in the matter of compliance with the Ordinance, Regulations and the Resolutions. ' Mr. Ibrahim Dasti adopted arguments of Mr. Liaquat Merchant. ' The learned counsel appearing for the parties rightly adopted the position that section 6 of the Ordinance is applicable to this case. The section runs thus: "6. Approval of plan.--(1) No building shall be constructed before the Authority has, in the prescribed manner, approved the plan of such building and granted no objection certificate for the construction thereof on payment of such fee as may be prescribed: Provided that in the case of a building the construction whereof has commenced before coming into force of this Ordinance, the Authority's approval of the plan and no objection certificate shall be obtained not later than six months after the enforcement of the Ordinance. (Explanation.--The word 'consent' with all its variations used in this section and thereafter shall include 'reconstruct' with all its variations and, additions or alterations.) (2) No building mentioned in subsection (1) shall be occupied by any person or shall be allowed by the builder to be occupied, before the Authority has, on application of the occupant or owner, issued occupancy certificate, in such manner as may be prescribed. (3) No building mentioned in subsection (1) shall, except with the permission of the Authority, be used for the purpose other than that for which its plans were approved. (4) Where the Authority is satisfied that the purpose for which the building is desired to be used, is consistent with the approved plans of the building, it may grant the permission under subsection (3) on such conditions and on payment of such fees as it may fix." ' In exercise of the powers conferred under Article 15 of the KDA Order 1957, the Karachi Development Authority framed the Zoing Regulatiosn in the year 1972. Regulation 4 provides special conditions for Scheme No, 5, as per Schedule E. Para. 5 of Schedule E provides that all 'G' type plots having areas of 2800 to 3400 square metres: (a) Not more than 1/3rd of the plot area shall be allowed to be covered by the main building and not more than other 1/8th by ancillary structures. (b) Height of the building shall not exceed 12.8 m or three storeys whichever is less. A maximum height of 15.25 m shall be allowed for Barsati and staircase tower, provided their area shall not exceed 1/30th of the plot area. (c) Minimum width of open space that shall be left in the plot are as follows:- In the front side 6.00 m. In the rear 9.00 m. ' Schedule 'A' states the general conditions for all KDA schemes, housing societies, displaced persons colonies and schemes, sponsored by the Ministry of Works. Clause (m) empowers the K.D.A. For relaxation in compulsory open space on technical grounds. The Governing Body of the K.D.A. Delegated its powers and functions to the officers of the Building Control Authority under Master Plan and Environmental Control Department and a committee was constituted. This was done by Resolution No, 676 dated 25-10-1981.
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' The Director, Master Plan and Environmental Control Department was delegated power of accepting approval of all building plans of special value such as commercial complexes, hotels, restaurants, cinemas. Para 12 states that approval of commercialization and change of land use shall be done by Director General/Governing Body, KDA except in those cases where approval as a policy has been granted shall be done by Controller of Buildings/Director, MP & EC. Para. 7 provides that sanction of additional floors shall be done in accordance with Town Planning Regulations, 1979. In case of any difficulty, the case may be put to Director General. It further provides that charges shall be realized as fixed by the Government from time to time. ' The question for consideration is whether the aforesaid provisions of the Ordinance, Regulations and Delegations of Powers to the Building Control Authority and the Master Plan and Environmental Control Department and the Director General, K.D.A. Have been designed for protection of right and interest of adjoining owners or not. ' The following two paragraphs from Halsbury's Laws of England (Fourth Edition) Volume 45 throw light on the question in Issue and may profitably be extracted as under:- "1282. Matters to be considered.--Whether or not an individual can bring a common law action in respect of a breach of a duty imposed by a statute depends upon whether the intention of the statute, considered as a whole and in the circumstances in which it was made and to which it relates, was to impose a duty enforceably by an aggrieved individual. No universal rule can be formulated which will answer the question whether in any given case an individual can sue. In answering the question it is, however, relevant to consider whether the statute was intended to protect a limited class of persons or the public as a whole, whether the damage suffered by the person seeking to sue was of the kind which the statute was intended to prevent, whether a special statutory remedy by way of penalty or otherwise is prescribed for breach of the statute, the nature of the obligation imposed, and the general purview and intendment of the statute. 1283. Class of persons protected.--An individual may sue for a breach of statutory duty only if the statute imposes duty enforceable by a party aggrieved. The answer to the question whether statute imposes a duty so enforceable does not necessarily depend upon whether the statute was intended to protect a limited class of persons or the public as a whole. Nevertheless it is of importance to determine what was the intention of the statute in this respect, because, if the statute on its true construction is intended to protect a particular class, it is some indication that members of that class are intended to have right of action (for example in the case of statutes for the protection of factory workers, mine workers, building workers, merchant seamen, dock labourers and shipyard workers, or intended for the protection of the public when exposed to certain dangers). On the other hand, if the statute is intended to protect the public as a whole, it will not usually be construed as giving a right of action to individual members of a particular class. In any case in which a class of individuals has a common law right of action in respect of the breach of a duty imposed by a statute, a plaintiff to succeed must show that he is within the class of persons which is intended to be protected and to which the duty is therefore owed." ' From the aforesaid paragraphs, broadly two important principles emerge, (1) though a statute may impose a public duty, it may at the same time impose a duty enforceable by an aggrieved individual in addition to the public duty; (2) the plaintiff to succeed must show that he is within the calss of persons which is intended to be protected by the statute. ' There can be no controversy that the Ordinance and the Regulations impose a public duty. The question for consideration is whether they also impose in addition a duty enforceable by adjoining owners who are aggrieved by the construction of a neighbour in violation of the regulations and the plan. ' We would now proceed to examine the various authorities cited at the Bar under Municipal Act and KDA Order, 1957. In Hirendra Nath Datta v. Corporation of Calcutta and others (AIR 1941 Calcutta
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386), Edgley, J. Made the following observations: "....It must be assumed that in framing the statutory rules relating to the space to be left between buildings and their height, the Legislature had in view the general convenience of all residents in the municipal area in order to ensure proper ventilation and sanitation for the rate payers, and possibly adequate means of preventing the spread of fires from one building to another. In this view of the matter, it is impossible to say that the petitioner would not be affected by any breach of the existing rules, and,,in my view, he has a clear right to insist that these rules should be strictly observed by the Corporation in reference to any plans for the extension of the Tagre building." ' The case was under the provisions of Calcutta Municipal Act (III of 1923) and the rules framed thereunder. Doubtless, the case was decided under section 45 of the Specific Relief Act, in the exercise of the ordinary civil jurisdiction of the Calcutta High Court. The proposition enunciated was, however, in relation to the object of the substantive law on the point. ' Similar view was taken by Ameer Ali, J. In re Sm. Lakshmimoni Dassi (AIR 1941 Calcutta 391). It was observed that: "....The question is whether, where the provision is primarily in favour of the general public but in the nature of things the breach of it must injure the specific individual to quite a different degree, such a…
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