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Petitioner: MOHAMMAD MUNIR VS Respondent: AHMAD ALLY MEMON AND 2 Other
Court Name: Sindh High Court Judge(s): Saleem Akhter Title: MOHAMMAD MUNIR vs AHMAD ALLY MEMON AND 2 Other Case No.: Suit No. 560 of 1979 Date of Judgment:1982-03-09 Reported As: PLD 1982 Karachi 425 Result: Suit dismissed
JUDGMENT
JUDGMENT This is a suit for declaration and permanent injunction as the averment that on 19-3-1963 plaintiff jointly with his brother Haji Rehmat Ali purchased leasehold rights of Plot No. 275/A. Sheet G. R. E. Measuring 1032 sq. Yards situated in Garden East, Karachi with double-storey building thereon. On 24-3-1970 Haji Rehmat Ali gifted his share in the said property to the plaintiff and thus the plaintiff became the sole owner of the said property. The defendant purchased the leasehold rights of the adjacent plot bearing Survey No. 275, Sheet G. R. E. Garden East, Karachi measuring 1436 sq. Yards with a double-storeyed building. The defendant demolished the existing structure and started raising new building from April/May, 1979. It has been averred that the entire land in .The Garden Quarters in the City of Karachi vested in the Government and initially lease in Special Form No. 15-E was granted in respect of both the plots. Condition No. 9 of the lease provided that the lessee shall submit to the Collector and obtain his sanction to a plan and specification of the building to be erected before any building operations are commenced. It also provided that the maximum area on which a building may be erected shall be 1/4th of the entire plot. Under the Bombay Town Planning Act, 1915 an award was made on 7-3-1933 in respect of Town Planning Scheme for Garden Quarters, Karachi which inter alia provided that the maximum area on which the building may be erected shall be 1/4th of the entire plot and no building other than dwelling houses shall be erected within this area. It has further been alleged that Collector of Karachi issued a circular on 29-3-1938 which inter alia required that no building other than bungalow or a cottage shall be constructed in a building plot but flats of superior type may be permitted by the Collector at his discretion provided that the number of tenements in any one building shall not exceed four and no tenement shall contain less than 4 rooms in addition to a kitchen, store, a bath and a W. C. The height of the
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building shall not exceed 2 storeyes including the ground floor and a minimum distance of 10 feet shall be maintained between any two buildings within the same plot. According to the plaintiffs this circular was in the nature of restrictive covenants running with the land and is binding on all the lessees and/or transferees of the plots in Garden Quarters, Karachi. According to the plaintiff the defendants started construction in April/May, 1979 and first they orally informed that it would be a two-storeyed building including ground floor for residential purposes but later. It transpired that the defendants were raising two blocks of flats of five storeys, that is, ground plus four floors. From the plan for construction which was made available to the plaintiff it appeared that the defendants have been permitted to raise construction of 5 floors including ground floor with conditions that;- (1) the owners shall obtain `No-Objection' from the Deputy Collector, Karachi before starting the construction. (2) the right of easement is a matter between the concerned parties with which Karachi Municipal Corporation has no concern and the approval is subject to the owner obtaining No-Objection Certificate of the owners of the adjoining plots. The plaintiff has asserted that the defendants have not obtained any. N. O. C. From the owners of neigh--bouring plots including the plaintiff and has started construction in violation of the terms of approval of the plan. The plaintiff has further alleged that if the construction of the proposed building is allowed the plaintiff's right of privacy will be affected for all times to 'come and the right accruing under the lease. Building Regulation, the Collector's Circular and the covenants running with the land will be put at naught. In these circumstances the plaintiff has prayed that the special permission/No Objection, granted by defendant No. 3, that is, the Deputy Collector of Karachi to defendants Nos. 1 and 2 for the proposed construction on Plot No. 275, Garden East is illegal and without authority and further relief for perpetual injunction has been sought restraining defendants Nos. 1 and 2 from making any construction higher than two storeys (ground plus 1st floor) on the said plot of land. 2. The defendants Nos. 1 and 2 filed their written statement in which besides raising preliminary objection relating to the maintainability of suit, have denied the purchase and gift alleged by the plaintiff. It has been pleaded that the defendants Nos. 1 and 2 hereinafter called the "contesting defendants" purchased the rights, title and interest in the adjoining plot bearing No. 275, Garden East with a double-storeyed building thereon which was 30 feet high and windows which overlooked the plaintiff's plot. It has been alleged that the plaintiff at all material times was aware that the defendants had acquired the property on Survey No. 275 for purposes of demolition and raising the high-rise construction thereon. It has further been alleged that the plaintiff had knowledge of the defendants' building plan and the steps taken by them in implementation thereof. In these circum--stances it has been pleaded that the plaintiff has acquiesced in such construction and the plaintiff is estopped from raising objection. It is further alleged that the objection raised by the plaintiff lacks bona fides and good faith. With regard to the condition imposed by the Deputy Collector it has been pleaded that the same are illegal and have been subsequently lawfully rescinded. As regards circular of 29th July, 1,938 it has been averred that it was merely issued for general guidance and is neither binding nor enforceable. 1t has been denied that there are restrictive covenants running with the land as alleged. It has been denied that the plaintiff or his predecessors-in-interest have been enjoying the easement of light, air and privacy particularly in the manner alleged by the plaintiff. The defendants have further pleaded that after obtaining requisite approval of their building plan they carried out the demolition and effected purchases of cement, steel, wood etc., which were stored at the site. The defendants entered into sub--contracts with various parties and .Prepared a model of the building which was proposed to be constructed and was placed at site for public view. After soil testing excavation work was carried out and after completing the foundation work raised columns upon columns of the roofs of first floor and second floor. The height of the under-construction ground plus second floor was
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about 32 feet with only one essential window on each floor opening on the side of the plaintiff. The open space between the construction on two plots was about 10 feet on each side but now on their side the contesting defendants have increased it to 15 feet. It has been further averred that the elevation of the proposed building was placed at an angle of 45 degrees of the bungalow claimed by the plaintiff, thus ensuring more than adequate air and light to the inmates of both the buildings. It is alleged that the plaintiff waited till the work of second floor had started and without giving any prior notice, with the object of holding up the construction work thereby compelling the contesting defendants to. Submit to his terms, filed the present suit. He defendants had apprised the neighbouring owners including the plaintiff - about the nature of building and construction. It has further been contended that the defendants have not violated any condition and that the limitations placed were neither operative at the earlier juncture nor they are effective presently. It has also been stated that prior to partition multi--storeyed buildings were constructed in Garden Quarters and with the growth of the city and its continuing increasing need the high-rise buildings have become the order of the day. It has been denied that plaintiff's comfort air or easements or right of privacy will be infringed. It has been denied that the defendants' windows will in any manner invade or interfere the customery right of pardah to which the plaintiffs were put to strict proof. The defendants in these circumstances prayed for dismissal of the suit. On the basis of these pleadings the following issues were framed (1) Whether the suit is maintainable and/or mala fide ? (2) Whether the suit is bad for non-joinder of parties ? (3) Whether the defendants Nos. 2 -and 3 are not entitled to raise construction beyond two floors ? (4) Whether defendants Nos. 2 and 3 are not entitled to raise construc--tion covering area beyond one-fourth of the total area of the plot ? (5) Whether construction beyond two floors would interfere with plaintiff's rights of easements and/or privacy ? (6) Whether construction of building beyond two floors is in violation of the terms of the approved plan ? (6-A) Whether Circular dated 29-7-1936 has any statutory force. If so what is its effect ? ' (7) Whether permission granted by defendant No. 3 for the construction of the disputed building is legal and valid ? (8) Whether plaintiff is estopped from objecting to the construction of the building in dispute ? (9) Whether plaintiff is, entitled to the reliefs claimed ? (10) What should the decree be ? 3. There are four other suits viz. Suit No. 372/80, Suit No. 644/79, Suit No. 1002/79 and Suit No. 82/80 involving similar points which have been tried together. The learned counsel for the parties have agreed that the evidence of the official witnesses recorded in one suit shall be treated as evidence in all the suits. 4. In the present suit the plaintiff has examined himself and one Muhammad Arshad ~a resident of Bungalow No. 259, Garden East, Karachi. The evidence of witnesses from Karachi Development Authority and. City Deputy Collector's Office was also recorded in Suit No. 372 and shall be read in the present suit so far they are relevant to it. 5. The main grievances of the plaintiff in a nutshell are set out in paragraph 15 of the plaint which is reproduced as follows;-- "That as set out above the blocks of flats under construction, if they go beyond two storeys (ground+ one) ; ' (a) would interfere with plaintiff's rights of easement of privacy causing nuisance to them ; (b) would be in complete violation of the terms of original lease, the Building Regulations under the Award and the Circular issued by Collector inasmuch as more than two storeys (ground+ one) are
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not permissible thereunder ; (c) construction of building beyond two floors without No Objection ofthe neighbours including the plaintiff is a violation of the terms of- the approval of the plan; (d) covering area beyond 1/4th of the total area of the plot is prohibited by the original lease and the Building Regulations made under the Award." 6. Before considering the issues it would be convenient to first describe the nature of land and the legislative history governing town planning and building control. The land in Garden East, Karachi is granted by the Collector on behalf of the Provincial Government on long term lease under,section 62 of the Sind Land Revenue Code and for that purpose a Sanad lease under section 133 of the Code is issued by the Collector. In the present case the Sanad was issued in a prescribed form which inter alga contained the following conditions- "(a) No further sub-division shall be made without the Collector's sanction. (b) The lessee shall submit to the Collector and obtain his sanction to a plan and specification of the buildings to be erected before any building operation are commenced. (c) The maximum area on which buildings may be erected shall be one fourth of the entire plot. (d) Where the boundary of a plot is a road no building or portion of a building, other than compound walls or entrance gates, shall be erected within fifteen feet of such boundary. (e) For the purposes of condition (a) above, a verandah which projects beyond the plinth area of a building shall be included in the. Area occupied by buildings. (f ) The minimum area of a building plot shall be one thousand square yards." By virtue of Sanad/Lease issued in the aforestated manner only leasehold rights were transferred and the Government remained the owner of the land. 7. I would now briefly state the relevant statutes and circulars which govern Town Planning and regulate the construction of buildings in Karachi. Mr. Syed Sharifuddin Pirzada the learned counsel for the defendants tracing in detail the historical picture referred to the provisions of the statutes which are relevant for the present suit and were promulgated during the century commencing from 1879 to 1979. The first Act is Sind Land Revenue Cod Act (V of 1879) under which Sanad is granted. Section 62 provides that the Collector could require payment of price for unalienated land or to sell the same by auction and to annex such conditions to the grant as he may deem fit, before permission for occupancy is given under section 60. Section 133 imposes an obligation on the Collector to issue Sanads to persons to whom grants are made under section 62 in the prescribed form (Schedule H) or to the like effect by specifying plans and description, the extent and condition of his holding. 8. The second statute to be noted is the Sind Town Planning Act, 1915 (Sind Act I of 1915). This Act provides that the Local Authority could prepare scheme for town planning in which provision inter alia may be made for the construction, alteration and removal of building, bridges and other structures "imposition of conditions and restriction in regard to the open space to be maintained about the buildings. The number, height and character of buildings allowed in specified areas and purposes to which buildings or specified areas may or may not be appropriated". After a draft scheme has been sanctioned the Provincial Government under section 29 shall appoint an Arbitrator to decide the matters specified under section 30 which mostly include financial obligations. After the Arbitrator has decided all matters, the final scheme shall be forwarded to the Provincial Govern--ment which may by notification in official Gazette sanction the scheme or refuse to give such sanction. Under section 46 a Town Planning Scheme could be varied or revoked by a subsequent scheme prepared in accordance with this Act. The Provincial Government may suo motu or on application of Local Authority or any person interested, by a notification in the official Gazette revoke the whole or any part of a town planning scheme. In pursuance of this Act a
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scheme was prepared, and notified in the Bombay Government Official Gazette dated 28-11-1935 and same came into force from 1-t-1936. With regard to Garden West and East Quarters it was provided that the minimum size of a building plot shall be 1000 sq. Yards and the maximum area on which building may be erected shall be one fourth of the entire plot. 9. Thereafter City of Karachi Municipal Act, 1933 was promulgated. Under Chapter XIII Improvement Schemes and Building Control was vested in the Corporation and Building Control Rules, 1934 were framed which controlled and regulated the construction of buildings. This Act was followed by Karachi Improvement Trust Act, 1950 (Act XLVIII of 1.970). The object was to make provision for the development and expansion of the Capital of the Federation and certain areas in its vicinity. The Board of Trustees was empowered to frame and execute the improvement schemes. By section 175 of the Act Chapter XIII of the City of Karachi Municipal Act, 1933 which related to improvement schemes was repealed. The improvement schemes, fell within the ambit of Karachi Improvement Trust. Then came Karachi Development Authority Order, 1957. Its preamble is similar to that of Karachi Improvement Trust Act, 1950. By this Order Karachi Development Authority was authorised to deal with the development, improvement and housing schemes. Article 149 of the Order repealed the Karachi Improvement Trust Act. It also repealed sections 186 to 192, 198 to 201, 203 and 204 to 211 in Chapter XII of Karachi Municipal Act. The K. D. A. Therefore performed the dual functions of Town Planning and Building Control. Thereafter Municipal Administration Ordinance, 1960 (Ordinance X of 1960) was promulgated. Without repealing Act I of 1915 it purported to consolidate the law relating to municipal administration in Pakistan. It brought back the functions of Town Planning and Building Control within the purview of Municipal Corporation/Municipality. Section 77 provided that no person shall erect or re-erect a building or commence to erect or re-erect a building unless the site has been approved and the building plan has been sanctioned by the Municipal Committee. Lathe year 1972 Sind People's Local Government Ordinance, 1972 (Order II of 1972) was promulgated. It repealed the Municipal Administration Ordinance, 1960 and vested Karachi Metropolitan Corporation inter alia with the functions of planning, Development and Town Planning including Building Control. On 4-1-1979 Sind Local Government (Amendment) Ordinance, 1979 (Ordinance I of 1979) was promulgated which -provided that in Sind People's Local Government Ordinance, 1972 the "People's" shall be omitted in the title and the text wherever occurring. Thereafter Sind Building Control Ordinance 1979 (Ordinance I of 1979) was enforced -o3- 17-3-1979 to regulate the' planning, quality of construction and buildings control, prices charged; . And publicity made for disposal of buildings and plots by builders' and societies and demolition of dang--erous and dilapidated buildings in Sind. Section 6 of the Ordinance provided that no building shall be constructed before the Authority established under the Ordinance approved the plan of such building and granted no objection certificate for the construction thereof. It may be mentioned that under a notification issued on 18-3-1979 K. D. A. Was appointed as an Authority. ,It is thus obvious that from 17-3-1979 the functions of building cantrol was vested in K. D. A. Acting as an Authority under the Sind Building Control Ordinance, 1979. This is the uptodate legislative history of the statutes governing Town Planning and Building Control in Karachi. 10. In this connection it is pertinent to refer to a circular of 29-7-1938 and Memo. Dated 1-5-1952. This circular was issued by the Collector of Karachi requesting all the architects that the height of buildings should not exceed two storeys including the ground floor. Again a Memo. Was issued by the Administrator, Karachi on 1-5-1952 authorising construction of building on the maximum area of 1/3rd of the area of the plot. Although it has not been proved, its existence has not been denied during the arguments. It may also be pointed out that in exercise of powers under section 74 of the Sind People's Local Government Ordinance, 1972 (Sind Ordinance II/72) the Provincial Government Authorised Karachi Municipal Corporation to levy a fee at the rate of Rs. 15 per sq. Yard of the total
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area of the plot per floor on the construction of additional floor beyond the original permissible limits in all the areas. Now in the background of all these facts I will consider the Issues Issue No. l.-It will be discussed with Issue No. 8. Issue No. 2.-Not pressed. Issues Nos. 3, 4, 6, 6-A & 7.-On 21st May, 1978 the architect of defendants Nos. 1 and 2 submitted to the Assistant Commissioner, Karachi, for approval the plans for the proposed construction of a. Multistoreyed (Ground plus four storeys) residential building on the contesting defendant's plot. The Assistant Commissioner forwarded the plans to the Architect Control, Karachi Municipal Corporation for their "opinion from the Town Planning point of views". The Town Planning Cell of Building Control Department. Karachi Municipal Corporation granted planning permission and informed the Assistant Commissioner that "The Cell has no objection for multi-storeyed (Ground plus four Storeys) purely residential building from town planning point of view", subject to the condition that additional floor charges are to be paid to the K. M. C. The witness has produced the entire file of the Assistant Commissioner, relating to the disputed plot. From the nothings it seems that reference was made to the `no objection' issued by K. M. C. And it was also pointed out that the land is held on Government H/3/1 Form. Taking into consideration all these facts, permission to construct five storeyed building (Ground plus Four Storeys) was granted. The Deputy Commissioner's Order dated 19-6-1978, is reproduced hereunder :- OFFICER OF THE DEPUTY COMMISSIONER, SOUTH, KARACHI No. CTS/CS-795 of '78: Karachi 19-6-1978. Read: "(1) An application dated nil from Mr. Ghulam Architect on behalf of the lessees requesting for the grant of .Permission to construct a multistoreyed five storeyed purely residential building on Plot No. 275 Garden East Quarters, Karachi. (2) Letter No. AC/TPC/63/78 dated 10-6-1978 from the Town Planning Cell, K. M. C. Granting their no objection from the Town Planning points of view for the proposed construction of a multistoreyed five storeyed purely residential building on Plot No. 275 Garden East Quarter, Karachi." ORDER OF THE DEPUTY COMMISSIONER, SOUTH KARACHI The lessees of Plot No. 275 Garden East Quarters, Karachi are granted permission to construct a five storeyed purely residential building including the ground floor on the above said plot. East storey shall comprise two (2) fiats i.e. In all Twenty (20), each having three bed rooms, one drawing room and other amenities. This permission in 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 Deputy Commissioner, Karachi as per the terns 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 of this permission and further action for the forfeiture of the plot will be taken. (Sd.) for Deputy Commissioner, South Karachi. Copy forwarded to :-- "(1) The Lesseses. (2) The Architect Control, K. M. C. (3) The Land Manager, K.. M. C."
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On 5-12-1978 the Architect (Control) K. M. C. Approved the plan subject to No-Objection Certificate of the owners of the adjoining plots. However, it so happened that on 17-3-1979 Sind Building Control Ordinance, 1979 was promulgated and K. D. A. Was appointed as an Authority under the Ordinance to perform the duties of approval of building plans which was previously performed by K. M. C. Under section 6 of the Sind Building Control Ordinance 1979 the approval plans were to be submitted within 6 months from the enforcement of the Ordinance before the Authority for its approval under this Ordinance. Consequently the architect of the defendants submitted the plan to the Deputy Controller of Buildings 11, Master Plan Department, K. D. A. Before submitting the plan the defendant's architect had sought clarification from Master Plan Department who had confirmed that "Building Plans for Garden Area are being approved without imposing any condition obtaining No-Objection Certificate from the adjoining owners. It was further stated that this condition has been waived. The plaintiff, however, seems to have protested and made representation. From the file produced as Exh. 8/1 it seems that a letter was prepared cancelling the waiver of condition of producing No-Objection Certificate but it was not issued. The original letter is in the file and on this basis Mr. Sharifuddin Pirzada, the learned counsel for the defendants Nos. 1 and 2, has contended that even if such a letter was prepared the same was never issued and served on defendants and therefore it does not have any valid and binding force. The waiver of condition, therefore,, stands unrevoked. K. D. A. Being the relevant authority to approve the plan have granted their approval from Town Planning and Building Control points of view. It is obvious that while approving the plan necessary steps have been taken to protect the…
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