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Petitioner: KARACHI BUILDING CONTROL AUTHORITY VS Respondent: Sufi MUHAMMAD ISMAIL And JUDGMENT
Court Name: Sindh High Court Judge(s): Syed Haider Ali Pirzada Title:KARACHI BUILDING CONTROL AUTHORITY vs Sufi MUHAMMAD ISMAIL And
JUDGMENT
Reported As: 1989 MLD 2987 Result: Revision dismissed Judgment JUDGMENT This is a defendant's revision application directed against concurrent order passed by the Courts below granting a temporary injunction sought by the plaintiffs respondents in a suit instituted by them against the defendant/applicant for a declaration that the plaintiffs are entitled to construct a building in accordance with the plan submitted by them and the said plan stands duly approved on lapse of sixty days and restraining the applicant from interfering with the building operations of the plaintiffs on the plot in suit. The temporary injunction sought was also restraining the defendants from interfering with the building operations. The facts relevant for the disposal of the revision application are that piece and parcel of the land bearing Survey No. 13, sheet No. FT-4 admeasuring 4,524 square yards is situated at Frere Town Quarters, main Clifton Road. Karachi. The plaintiffs purchased the above said plot from Hefeez-ur- Rehman and others through registered sale-deed. The above plot is situated on main Clifton Road and the frontage of the plot abuts on the main Clifton Road while the portion of it faces Bath Island. It is alleged in the plaint that the entire area on the side of the main Clifton Road is commercialised or at least is being used as such. The power to permit and utilize the plot for commercial purposes vested in K.M.C who has in principle agreed to allow the commercialisation of the plot in suit on payment of Rs. 400 per square yard as the fees of the commercialisation. 1t is alleged that the defendant/applicant is an authority created under the provisions of the Sind Building Control Ordinance and is assigned certain functions with respect to the approval of the building plan. It is the case of the respondents that the respondents in accordance with the provisions of Sind Building Control Ordinance, submitted the plan for construction of one plus two storeys residential-
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cum-commercial building on the said plot. The applicant refused to accept the same on which the respondents approached the Director-General, K.DA., who ordered the applicant to accept the plan and process the same on 21-1-1987. It is the case of the respondents that they do not intend to use the building for commercial purpose unless all the formalities as required for such use are completed. In the plan the respondents propose to construct two town houses on the back side of the plot in suit abutting the road leading to Bath Island. It is further alleged that the respondents are thus not using the plot in suit for commercial purpose in so far as the Bath Island side of the plot is concerned. The respondents made enquiries from office of the applicant and they were informed that the matter was under consideration. It is the case of the respondents that the applicant failed to pass any order refusing permission to carry out the building work proposed in the building plan submitted by them on 21-1-1987. Therefore, under Article 13 of Karachi Building and Town Planning Regulations Part I as framed by the applicant in pursuance of the powers vested in it under the Sind Buildings Control Ordinance, the plan submitted by the respondents is deemed to have been sanctioned to the extent, it does not contravene the provisions of these regulations. It is the case of the respondents that the respondents have served the applicant with the notice as prescribed by Article 13(3) of the aforesaid Regulations. It is the case of the respondents that the plan is perfectly in order, strictly in accordance with the rules and regulations framed by the applicant and does not in any manner whatsoever, to the knowledge of the respondents, contravene any of such regulations. It is the further case of the respondents that having served the applicant, with a requisite notice the respondents as a matter of right are entitled to start their building operation on the plot in suit and the applicant or any person or persons claiming through/under it is not entitled to interfere with the said building operation. There respondents have collected material and made preparations to commence the building operations on the plot in suit, but the applicant is extending threats that it will not allow the respondents to commence or carry on the building operations. The respondents have invested a huge amount in purchase of the plot in suit and also got it surveyed, levelled and made preparation of the plans for the use of the plot for the purpose of raising construction of- residential-cum-commercial building. The respondents have also invested huge amount for purchase of building material by employing qualified experts/engineers and architects and other personnel to commence or carry on the necessary building operations. The respondents filed the present suit for the following reliefs:- "(1) Declaration that the respondents are entitled to construct the building in accordance with the plans submitted by them which stands duly approved on lapse of sixty days. (2) An injunction restraining the applicant from interfering with the building operations of the plaintiff on the plot in suit. N.P. Alongwith the suit, an application for temporary injunction in the same terms as the reliefs claimed in the suit was moved by the respondents. This was contested by the applicant. The trial Court granted the application of the respondents on the following findings:- (1) The respondents are owners of the plot in suit and under the law they are entitled to use and enjoy the same as they like, within the four corners of law. (2) It is an admitted fact that they submitted the proposed building plan vide application dated 21- 1-1987 and more than 60 days have passed but no order has been passed on the same by the applicant. (3) It shall be treated to have been sanctioned. (4) The respondents had a good prima facie case and the balance of convenience is also in their favour. Being aggrieved with the above order, the defendant applicant filed an appeal. The appellate Court has endorsed the above findings of the trial Court and hence this revision.
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Learned counsel for the applicant has mainly concentrated his argument at attacking the correctness and legality of the finding recorded by Courts below to the effect that the respondent- applicant did not submit any plan on 21-1-1987. The discretion was. Not properly exercised and both the Courts below have gone out of the scope of the suit by passing order for commercialisation by implication. Mr. Muhammad Sharif, the learned counsel for the plaintiff/respondent has combated the submission made by the applicant .Contending that the Courts below having concurrently granted injunction, this Court should not interfere with the order/judgment passed by the Courts below in its revisional jurisdiction. He has further submitted that the respondents moved the plan alongwith the letter and the Courts below have not gone beyond the scope of the suit. The respondents filed suit against the applicant for declaration and injunction alleging therein. That they are the undisputed owner of a plot measuring 4,524 square yards .On which they intended to raise a building. The respondents in accordance' with the provisions of the Ordinance submitted the plan for construction of 1 x 2 storeyed residential commercial building on the plot. The applicant refused to accept their plan, hence they approached the Director---General K.D.A. Who ordered the applicant to accept the plan and to process the same vide order dated 21-1-1987. The learned District Judge has rightly come to the conclusion that the duly filled-in form and plan annexed to the plaint were annexed to the letter dated 21--1-1987. He has taken into consideration the notice under Regulation 13 served by the respondents. He also taken into consideration that the applicant did not inform the respondents that the plan submitted by them was rejected as it violated the building rules and regulations. He has come to the conclusion that the respondents have established prima facie case and the balance of convenience is also m their favour. Therefore, under these circumstances it is rather hard to say that the Additional District Judge has gone at a tangent or has taken into consideration some matters which were not on the record. Even it cannot be said hat he has misinterpreted the facts which were available on the record. Therefore the argument of Mr. Mubarak that the learned Judge has taken into consideration some facts which were not borne out of the record and he has relied upon something which was not borne out of the record, does not appeal to me in the least. Thus the Additional District Judge was justified in coming to the conclusion that the respondents have a right of freedom of use and enjoyment of their property within four corners of law and they cannot be restrained from exercising their said valuable right on technical ground. Therefore on facts also, the present revision application fails. Regulation 13 of Karachi building & Town Planning Regulations (Part-1) reads as under:- "13. After the receipt of an application for permission to carry out building works, the concerned Authority shall, within sixty days; (1) Pass orders granting or refusing permission to carry out such building works, and in the case of refusal specifying the provisions of the regulations violated or; (2) Require further details in the plans, documents, specifications and any other particulars to be submitted to it; (3) If no order is passed on an application within sixty days of its receipt, it shall be deemed to have been sanctioned to the extent to which it does not contravene the provisions of these regulations, or the Master Plan or Site Development Scheme, if any, and after giving due notice on prescribed form to the concerned Authority may proceed to carry out the said building works at any time within one year from the date of delivery 'of such notice". The respondents did not hear anything from the applicant. The contention of the learned counsel for the respondents is that the plan dated 21-1-1987 is deemed to be approved according to Regulation 13. "We understand the law to be that such period should be calculated from the date of a complete and proper notice, with a general description of the building to be erected with its plans and
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specifications, being submitted in such a form as to be capable of consideration by the municipal commissioners. The period should not be calculated from March, when the first notice was given but from the 6th of June, when it was submitted in a complete form and, calculated from this date, such as is contemplated by the law, that is. a period of six weeks, within which the municipal commissioners could or should have passed orders thereupon and the law declares that, on neglect or omission within such time to pass orders on the application, the person desirous of building shall be entitled to commence work on the ground that the Municipality, by their silence, shall be deemed to have given their sanction" "In the present case the Municipal Committee allowed more than one month to elapse before communicating with Kifayatullah, and, when it did communicate with him, it did not issue a notice, as it might have done under subsection (2) of the section, requiring the building to be altered or demolished, but it required him to stop the work and submit a fresh application. If Kifayatullah gave a notice which did not comply with the law, it should have been regarded as no notice at all and the Municipal Committee could have required him to alter or demolish the building; but as it must be taken that the notice given was in compliance with the law, and as the Municipal Committee did not issue any directions within one month of the receipt of the notice, the Municipal Committee had no authority to take any action under subsection (2) of section 85" "Another contention was raised on behalf of the first appellant, namely, that the Municipal Council did not sanction the construction of the building within six weeks on receipt of the plan and, therefore he was entitled to build it in any way he liked. Under S. 180, Cl. (5) of the District Municipalities Act if within the period of six weeks the Municipal Council does not grant the licence, the applicant can proceed to construct, re-construct or extend a wall or building, as the case may be, but such construction must be in accordance with the plan which accompanied his application. The period of six weeks is fixed by the Legislature in order to make the Municipal Council prompt in granting or refusing sanction and to prevent such applications being left pending for a long time. The applicant is not entitled to depart from the plan by reason of the laches of the Municipal Council in granting or refusing sanction. If the Municipal Council does not refuse sanction within six weeks the applicant may proceed to construct the building and that only in accordance with the plan submitted for sanction". "As we read subsection (3) of section 77, we are of the view that in a case where a person applies for sanction of a plan by the Municipality, the Municipality must with all promptness deal with the application and pass necessary orders thereon, and the time taken by the Municipality for doing so has been fixed to be not more than sixty days. Within these sixty days according to us, the Municipality shall either accord sanction or refuse it or modify the plan or accord sanction by modifying the plan as it feels justified in accordance with the laws or by-laws of the Municipal Ordinance and if the Municipality does not within sixty days of the registration of the application intimate the applicant either way, it will be presumed that the Municipality has given sanction to the plan of a construction applied for". PLD 1987 Lahore 171), the petitioner submitted a building plan on 1-8-1973 to the respondent for sanction but did not get any intimation about its disposal and after some waiting, he carried out the proposed construction on the assumption that since he had not been conveyed its rejection, therefore, the building plan submitted by him was deemed in law to have been sanctioned. However, on 9-10-1973 the respondent issued a notice requiring him to demolish the house in question. The petitioner filed a suit for injunction against the respondent. The respondent resisted the suit. The suit was dismissed by the trial Judge. The petitioner's appeal was also dismissed. The petitioner being aggrieved filed the revision petitioner before Lahore High Court. A Single Judge of the Lahore High Court accepted the petition. It was held:-
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"It is not the case of the defendant that the construction made on the site in not in accordance with the plan submitted by the petitioner. Even the notice (Exh. P 3) has neither been issued to the petitioner nor does it mention anything regarding his plan, muchless about the rejection thereof and does not even specify as to which particular house does it relate. What to speak of the communication of the refusal to sanction the plan of the petitioner, he has never been notified its rejection and muchless has the defendant suggested any modification or alteration therein". The revision was accepted and the decrees of the Courts below were set aside. Mr. Mubarak contended that the plot is a residential plot and the respondents cannot raise a commercial building. This contention is devoid of force. The breach is between the lessor and the lessee. Similar questions of restrictive covenants were considered in the following cases:- (i) Moosa Bhunji v. Hashwani Sales and Services Ltd. & another (PLD 1982 Karachi 840). (ii) Muhammad Munir v. Ahmad Ally Memon & 2 others (PLD 1982 Marachi 425). (iii) R. G. Sehwani Co-operative Housing Society Ltd. v. Haji Ahmed & 3 others (PLD 1983 Karachi 11) The learned counsel for the respondents stated at the bar that the respondents had already deposited conversion charges in this behalf. The respondents 1 to 5 have also filed an undertaking which reads as follows:- "Under Administrative Instruction No. 57 PSDJ/KDA/82/26, dated 21st July, 1982 'Shahrah-e-Faisal and Main Clifton Road have already been notified to be commercialized. The land in question belongs to K.M.C. And Karachi Municipal Corporation under letter of Director Land K.M.C. No. DL/CLS/FT/88/319, dated 2-11-1988 Plot No. 13 FT-4, Frere Town facing main Clifton Road, Karachi as per plan has allowed it to be used as commercial. But it is undertaken that user of plot will be subject to above." But the Courts below have found as a fact that the plaintiffs-respondents have established a prima facie case inasmuch as cogent and positive material has been brought before the Court to lead to a reasonable conclusion that the respondents applied to the applicant for approval of the plan for construction of one plus two storeyed residential-cum-commercial building. Both the Courts below having come to the conclusion that the respondents have established a prima facie case and balance of convenience is also in their favour, they thought it is a fit case where a temporary injunction would be justifiable to issue. On this count the trial Court granted the application for temporary injunction. Appellate Court rejected the appeal. Mr. Mubarak strenuously urged before me that both Courts are guilty of committing jurisdictional error inasmuch as they have not considered material which has been put before them for consideration. Before proceeding in this respect it would be necessary for us to consider as to what has been brought before the Court and what both the Court below have considered. To repeat once again, it was positive contention of the plaintiffs that they had submitted a letter dated 21-1- 1987 alongwith duly-filled-in form and plan to the Director-General who ordered to process and report. Obviously there was no material before the Courts which could justify the inference that plan was not annexed to letter but was submitted on 19-1-1987. Both the Courts below came to the conclusion and in my opinion rightly, when they considered the circumstances particularly flowing from averments made in the plaint, application under Order 39 and affidavit in support thereof. It is pertinent to note that at the time of hearing before the appellate Court when the case is made out for the first time that the plan was not annexed to the letter dated 21-1-1987 but was actually submitted on 19-1-1987 only for residential building. In fact the controversy started when the appeal came up for hearing. The plaintiffs/respondents have come before the Court that the plan was annexed to the letter dated 21-1-1987. The applicant neither approved the plan nor rejected the same within sixty days as provided by Regulation 13. A notice under clause (3) of Regulation 13 was duly served. The plan is deemed to be approved. Both the Courts below rightly held that the
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respondents have complied with the provisions of Regulation 13. Both the Courts held that there was clear material available on record which would justifiably lead to the conclusion that the plan was approved. This is obviously in Finding of fact. It appears that the balance of convenience ties not in favour of the applicant but in favour of the respondents. Further the costs of materials aye escalating This aspect has not been lost sight of by the Courts below. The question here is whether the High Court has jurisdiction to entertain a revision under Section 115, CPC, against an interlocutory order of the Court: below. Section 115, CPC expressly limits it to three cases mentioned therein. All three relate to jurisdiction. It will, therefore, be necessary to examine the meaning of jurisdiction. It is defined in Halsbury's Laws of England (Hailshw, Edition) Volume 8 page 531 to mean: "By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted." The distinction between an error of fact or law committed in the exercise of jurisdiction and an inherent lack of jurisdiction is brought out by the Privy Council in (76)2 Cal. 131: 3 IA. 221 (P.C.) in the matter of Hajee Abdoollah at page 141: "In the first case "(that is, when a Court of appeal is correcting an error of law made by a lower Court)" the Appellate Court reverses the order, because the Judge has erred in the mode in which he has exercised a judicial discretion; in the latter case "(that is, when the order is made without jurisdiction)", it quashes the order, because there was no discretion at all to be exercised." This analysis reveals, to my mind, that cases like the present can in no event fall within clauses (1) and (b) of Section 115. 1 turn now to clause (c): "To have acted in the exercise of its jurisdiction illegally or with material irregularity." I am clear that the words "illegally' and "material irregularity" do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to the material defects of procedure. And not errors of either law or fact after the formalities which the law prescribes have been duly complied with both in letter and in spirit. It must be something independent of the decision itself; an irregularity or illegality in the manner of arriving at it, not in the conclusion reached. "It will be observed that section applies to jurisdiction alone, the irregular exercise, or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved." Those words appear to me to be emphatic and to be free from any sort of ambiguity. But even if there is difficulty, it is resolved by the illustrations given by their Lordships. One is: "------------.If the Civil Court should absolutely and whimsically decline to exercise its jurisdiction and refuse to make any orders------" Another at page 74: "An order made in such a matter in disregard of the requirements of natural justice, such, for instance, as proceeding without giving the member sought to be removed notice, or affording him an opportunity of defending himself." This was the view of the Privy Council as early as 7884 under the Old Code of Civil Procedure. Their Lordships said, construing Section 622 corresponding to Section 115, "The question then is, did the Judges of the lower Courts in this case, in the exercise of their jurisdiction act illegally or with material irregularity. It appears that they had perfect jurisdiction to decide the question which was before them, and they did decide it whether they decided it rightly or wrongly, they had jurisdiction to decide the
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case and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity." The questions which lower Courts had to decide in that case were of res judicata and what is now Order 2, Rule 2 under the present Code of Civil Procedure. The lower Courts there held that the suit was not barred for either reason and proceeded with the trial. The Court of Judicial Commissioner entertained a revision and set aside the orders of the lower Courts on the ground that they were wrong. The Privy Council held: "The Judicial Commissioner had no jurisdiction in the case." And this was not because the lower Courts were right but because whether they were right or wrong they had jurisdiction and accordingly the Judicial Commissioner had no jurisdiction to sit in judgment over them in revision. This decision was followed by the Privy Council five years later. The headnote in (89) 16 Cal. 747; 16 IA. 104 (Muhammad Yusuf Khan v. Abdul Rahman Khan) runs "A decision by judgment of a competent Court whether right or wrong which by law is final and without appeal, where the Court has not acted in the exercise of its jurisdiction illegally, or with material irregularity; cannot be set aside under section 622, C.P.C." This was reiterated for the third time in (15) 37 All. 485:. AIR 1915 P.C. 99 (Rajwnat Prasad v. Ram Ratan) at pages 494, 495: "Their Lordships think it is very little and very familiar that a challenge of the method of the exercise of the jurisdiction of a Court can never in law justify a denial of the existence of such jurisdiction. The former has reference to the merits of the case." Now it is pertinent to observe that with these three decisions before it…
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