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Official Citation: 1990 CLC 83
Court / Jurisdiction: Sindh High Court
Year of Decision: 1988
Decision Date: 1988-12-31
Parties: MUHAMMAD ASLAM GATTA And Another vs KARACHI BUILDING CONTROL AUTHORITY (K.M.C.), M.A. JINNA H ROAD, KARACHI And 13 Other
This judicial decision was delivered by the Sindh High Court on 1988-12-31. The matter involves proceedings between MUHAMMAD ASLAM GATTA And Another and KARACHI BUILDING CONTROL AUTHORITY (K.M.C.), M.A. JINNA H ROAD, KARACHI And 13 Other, officially reported as 1990 CLC 83. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 1990 CLC 83
Court Name: Sindh High Court Judge(s): Rasheed Ahmed Razvi Title:MUHAMMAD ASLAM GATTA And Another vs KARACHI BUILDING CONTROL
AUTHORITY (K.M.C.), M.A. JINNA H ROAD, KARACHI And 13 Other Case No.:Miscellaneous Applications No. 5708 in Suit No.772 of 1995 High Court Appeal No.112 of 1991 Suit No. 949; 6383 in Suit No.1139 and 6432 in Suit No.1158 of 1996 Date of Judgment:- Reported As: 1989 MLD 544 Result: Applications dismissed Judgment ORDER Suit No.772 of 1995 2. In this case, plaintiff No. 1 had booked an apartment bearing No. 6 at first floor while plaintiff No. 2 booked an apartment bearing No. 24 at third floor in Asma Arcade, constructed on Plot No. 217, Manikji Street, Garden East, Karachi. This project is being raised by defendants Nos. 2 to 6. The remaining defendants i.e. 7 to 14 are also owners of different flats in the said project. The case of the plaintiffs is that the defendant No. 1 in collusion with defendants Nos. 2 to 6 allowed the raising of construction beyond approved plan, which resulted in completion of the project; that the building is almost complete and is at the final stage; that the plaintiffs also hold registered Indenture of Sub-Lease which are, dated October, 1955 and, therefore, it is claimed that they are the lawful and bona fide owners. Therefore, they filed this suit for declaration and injunction seeking declaration' that the demolition of the said building by K.B.C.A. Be declared to be mala fide and discriminatory and are also seeking perpetual injunction restraining defendants from demolishing the same. In this suit plaintiffs have filed Civil Miscellaneous Application No. 5708 of 1995 under Order XXXIX, Rules 1 and 2, C.P.C. Seeking interim injunction against defendant No. 1 restraining them from demolishing the building on the suit property. The case of the K.B.C.A. Is that the apartments booked by the plaintiffs are result of unauthorised construction which was withdrawn by the K.B.C.A on account of serious irregularities and deviations committed by the builders/owners; that on 5th June, 1995 a show-cause notice under section 7(A) of the Ordinance, 1979 was issued but the
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owners/builders continued raising illegal and unauthorised construction. Therefore, on 15th June, 1995 approved building plan was withdrawn by K.B.C.A.; that the plaintiff filed a Suit bearing No. 611 of 1995 and got suspended the order of withdrawal of building plan from the Court of learned VII th Senior Civil Judge, Karachi (East). It is further case of the K.B.C.A. That they adopted all available measures to stop the illegal construction work and obtained assistance from the Office of Commissioner, Karachi, Deputy Commissioner, Karachi (East), S.D.M., Jamshed Quarters, Karachi and of Police Station Soldier Bazar, Karachi, but after passing of order in Suit No. 611 of 1995 all the efforts of K.B.C.A. Went in vain. It is further pleaded that the suit is barred under sections 16, 20 and 20(a) of the Ordinance, 1979. Case of the defendants Nos. 2 to 6, who are the builders is that since in the vicinity there were several buildings constructed or were under construction which were multi-storeyed in nature, therefore, they also raised the building in question. However, they have not stated anything about the approved plan. They have denied collusion with defendant No. 1 K.B.C.A. Defendants Nos. 14 to 17, who are also owners of other flats and shops in this project have supported the case of plaintiffs. 3. Plaintiff in this suit claims to be the owner of a shop in Mumtaz Arcade, ground. Floor on Plot No.106-A, Block No.2, P. E. C. H. S., Karachi and holds registered Indenture of sub-lease, dated 22-7- 1995. This project was constructed by defendants Nos. 2 and 3. The case of the plaintiff is that he has purchased the shop in question after making full payment and which was subsequently transferred in his name; that inaction on the part of defendant No. 1, for not taking any action against the defendants Nos. 2 and 3 in raising construction beyond approved building plan has resulted in creation of vested right. He has filed this suit for declaration that the sealing of shop by defendant No. 1, be declared to be illegal and unauthorised and is also seeking perpetual injunction against the defendant No. 1, from sealing the said shop. Civil Miscellaneous Application No. 1275 of 1996 is filed by the plaintiff seeking interim injunction in terms of the aforesaid main relief pertaining to the perpetual injunction. In the counter-affidavit filed by defendant No. 1 /K.B.C.A., it is averred that the building plan was approved on 12-1-1995 for ground plus 2 upper floors but the builders started construction beyond approved plan. Therefore, a notice under section 7-A of the Ordinance, 1979 was issued; that in response to such notice defendants Nos. 2 and 3 filed a civil suit bearing No. 396 of 1995 in the Court of VII th Senior Civil Judge, Karachi East, and after obtaining order of status quo completed the construction beyond approved building plan. K.B.C:A. Has prayed for dismissal of this stay application. On 3-3-1997 when the aforesaid facts were brought to the knowledge of this Court, file of Suit No. 395 of 1995 was summoned and was perused. It appears that the suit was filed in the Court of VIth Senior Civil Judge. Karachi East, on 13-4-1995. Notice was issued to K.B.C.A. For 16-4-1995 when on that day one Advocate appeared on behalf of K.B.C.A.. And filed application under section 148, C.P.C. Seeking time to file counter-affidavit. This application was granted and in the meantime "parties were directed to maintain status quo". It was under such circumstances that the builder completed the project and K.B.C.A. Did not take any action against the builders in presence of the order of status quo. It is pertinent to note that in para. 13 of the plaint, filed before the Court of VIth Senior Civil Judge, the suit was valued at Rs. 400 for declaration and at Rs. 200 for permanent injunction, but despite that the learned Senior Civil Judge vide his order dated 12-7-1995, (which is available at pages 185-187 of the R. & Ps.) granted extension of IS days' time to the K.B.C.A. To submit approved building plan on the consideration, inter alia, that the plaintiff has spent lacs of rupees on this project nevertheless learned Civil Judge permitted the plaintiff to value the said suit at Rs. 400 Suit No. 314 of 1996 4. The plaintiffs who are 13 in number have purchased Duplex Apartments in Madni Heights, constructed on Plot bearing No. J.M. 190, Main Britto Road, Jamshed Quarters, Karachi. The allotment letters have been filed as Annexures P-1 to P-13 with the plaint and are, dated January,
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1996. It is claimed by the plaintiffs that they are in physical possession of their respective premises; that on 9-4-1996, the defendant's officials visited the flats and attempts were made by them to damage the same; that the defendants also attempted to seal the premises, Plaintiffs have filed Annexures P-35 and P-36 with the plaint in order to show that the construction has been fully raised but perusal of the same shows that it is still unoccupied. It is the case of the plaintiff that they have invested substantial amount and that they are the bona fide purchasers; that the acts of the defendant to seal and efforts to damage the premises are highly illegal and mala fide. They have filed this suit for declaration to the effect that the plaintiffs are entitled to the property in Madni Heights constructed on Plot No. J.M-190, Main Britto Road, Jamshed Quarters, Karachi. They have also prayed for perpetual injunction restraining defendants from causing damage to the suit properties and from dispossessing the plaintiffs from their respective premises. The case of K.B.C.A. Is that on 20th September, 1995, building plan was approved for ground + 3 floors with 1 /3 covered area and compulsory open spaces as per rules, but it was found that the builders are raising unauthorised anal illegal construction; therefore, on 14-11-1995 notices were served under section 16 of the Ordinance, 1979 with the direction to the builders to remove unauthorised construction but the builders filed Suit No. 1183 of 1995 and obtained order of status quo from the Court of VIth Senior Civil Judge, Karachi East; that the builders have constructed structure up to 5 floors after obtaining order of status quo and in violation of approved building plan. Thus, plaintiffs have filed an application under Order XXXIX, Rules 1 and 2, C.P.C. Bearing No. 2131 of 1996. Suit No. 315 of 1996 5. In this case, there are fifteen (15) plaintiffs, who all booked different flats in POONAWALA HOMES, constructed on Plot No. JM-665, Fatima Jinnah Colony, Jamshed Quarters, Karachi. In support, they have filed copies of allotment orders and possession letters which indicate that the physical possession of the flats in question were delivered to the plaintiffs during the period January, 1996 to February, 1997. They have also filed photographs of the project as Annexures P/35 and P/36 with the plaint in order to show that the project is fully completed. Their grievance is that on 9th April, 1996, K.B.C.A. Officials visited the flats' site and attempted to demolish the construction as well as to seal their respective premises. With this background they have filed this suit for declaration that the acts of defendant to demolish and sealing of the premises be declared to be detrimental to their interest with the further prayer for perpetual injunction against defendant restraining them from demolishing and/or damaging the project or in any manner evicting the plaintiffs from their respective possession. Defendant K.B.C.A. Has filed its counter-affidavit as well as written statement in which it is stated that the building plan was approved on 7th December, 1995 for ground plus three upper storeys with the provision of 1/3 covered area and compulsory open spaces. Subsequently, on 12-12-1995 it was found that the builders were raising unauthorised construction; therefore, notices were issued to them. It is further case of the defendant that the builders filed two suits bearing Suits Nos. 12 of 1996 and 118 of 1996 in this Court and obtained stay order and raised the construction structure up to ground plus five (5) storeys. It is further stated that the builders have withdrawn the above suits but the Constitutional Petition bearing Constitutional Petition No. D-271 of 1996 is pending before a Division Bench of this Court, filed by Messrs Shehri C.D.E. It is the case of the defendant K.B.C.A. That the construction raised on the suit premises is in violation of the approved building plan and any construction raised in violation of building plan is liable to be removed. It is pertinent to note that the plaintiffs have not impleaded the builders of the project in this suit and are merely seeking interim injunction and declaration against the Karachi Building Control Authority. 6. Case file of Suit No. 12 of 1996 (Mst. Hajra Bai and others v. KBCA) and the case file of Suit No. 118 of 1996, which was also between the same parties, were summoned and perused by this Court. In Suit No. 12 of 1996, the plaintiff filed a suit for declaration and permanent injunction, seeking a negative
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declaration to the effect that the acts of the defendants in interfering with the construction work be declared to be illegal and unauthorised; that the notice, dated 24th December, 1995 be cancelled. Permanent injunction was also sought restraining the defendants from interfering in the construction work, which was being carried out according to the approved plan. The suit came up for hearing on 16-1-1996 when it was observed by this Court that the K.B.C.A. Have demolished some portion of the construction and are threatening to demolish the remaining construction. However, no injunction was issued. On 18-1-1996, after due notice to the K.B.C.A. It was restrained from taking any action with regard to the construction which is according to the approved plan. Subsequently, on 3-4-1996 this suit was withdrawn by the consent of both the parties. In another case, Suit No. 118 of 1996, the builders/owners had filed that suit on 13-2-1996 seeking declaration to the extent that the K.B.C.A. Has no right or authority to demolish the construction so far raised without giving the plaintiff an opportunity of hearing. Relief of perpetual injunction was also sought restraining defendants from demolishing any portion constructed on the suit premises. On 14-2- 1996 ad interim injunction as prayed was granted. This suit was also withdrawn on 3-4-1996 by consent of the parties. Suits Nos. 818 and 819 of 1996 7'. In both these suits some sixteen (16) plaintiffs are claiming ownership of flats in the project known as 'Bilal Garden', constructed on Plot No. 66/3, Sheet No. G.R.W., admeasuring 214 square yards, Block A, Lal Odho Mal Street, Off Ghulam Hussain Kassim Road, Garden West, Karachi. They have filed copies of indentures of sub-lease, which are all dated June, 1995 to June, 1996. They have also filed photo copies of bills of Sui Southern Gas Company and telephone bills in order to show that they are in physical possession of their respective flats. It is the case of the plaintiff that they being laymen were not aware of the facts on which the building was being constructed and that they have purchased the same after investing substantial amount from their life earnings; that the builders in collusion with the defendant permitted the project to be completed in violation of the approved plan; that on 28th August, 1996, the defendant started demolishing other buildings constructed within the area of Garden West and on the same day officials of defendant also visited the plaintiffs site; that the defendants have demolished building constructed on Plot No. 151, Plot No. 61 and Plot No. 137/3, Garden West, Karachi without notice and, therefore, the plaintiffs apprehend demolition of the same. It is the further case of the plaintiffs that the defendant cannot demolish the building known as Bilal Garden without adopting due course of law i.e. Serving notice to the plaintiffs and other occupants and unless opportunity of hearing is extended to the plaintiffs. With this background they have filed suit for declaration that the plaintiffs be declared to be lawful owner of the different flats in project known as Bilal Garden. They are also seeking perpetual injunction against defendant restraining them from forcibly demolishing building known as Bilal Garden, without adopting legal procedure. In this case the K.B.C.A. Was debarred from filing their written statement and till this date neither any counter-affidavit nor any opposition was filed to the plaintiffs' application under Order XXXIX, rules 1 and 2, C.P.C. (CMA-4373/96). The plaintiffs have filed suit against K.B.C.A. But have not impleaded builders as one of the defendants, against whom several allegations of serious nature were levelled by the plaintiffs. Suit No. 832 of 1996 8. There are five plaintiffs who have obtained flats in "Saleem Terrace" constructed on GR. W.93, Garden West, Karachi from one Muhammad Saleem s/o Haji Usman, who is builder of this project and who was not impleaded as co---defendant by the plaintiffs. It is the case of the plaintiffs that they have booked different flats in the said project which now stands completed and that the physical possession of their respective flats were also delivered to them. In support, they have filed photo copies of the Indenture of lease duly registered during the month of October, 1995. They have also filed photo copies of Challan Forms from G. Division, Assessing Authority of Urban Immovable
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Property Tax, to show that the flats were fully constructed and that the property tax is being levied. They have also filed telephone bills and provisional challans from Water and Sewerage Departments. Plaintiffs have filed this suit for declaration that they may be declared owners of their respective flats with other relief of prohibitory injunction against the defendant/K.B.C.A. Restraining them from evicting the plaintiffs, demolishing the project without adopting legal procedure. They have also filed application for interim relief of prohibitory injunction under Order XXXIX, Rules 1 and 2, C.P.C. (CMA-4578/96). The case of the defendant/KBCA is that initially the building plan for the suit premises approved on 27-7-1987, was for ground first floor and that the said approval plan lapsed as the construction was not raised within one year; that the builder started excavation of foundation and construction in compulsory open space; that notices were issued to the builders; that the builder filed two Suits bearing Nos. 2 and 3 of 1993 and obtained order of status quo from the Court of VIth Senior Civil Judge, South; that despite order of status quo builder raised illegal and unauthorised construction up to the 6th floor; that the construction was sealed and against that action builder filed third Suit No. 888 of 1996 and again obtained order of status quo; that the physical possession was handed over to the plaintiffs in total disregard of the provisions of the Ordinance, 1979; that the plaintiffs are not entitled to any protection of law and, therefore, the suit as well as miscellaneous applications are liable to be dismissed. Suit No. 833 of 1996 9. In this case some 20 plaintiffs have filed suit for declaration and permanent injunction in respect of residential project namely 'Ana Castle' constructed on Plot No. 81, Garden West, Karachi. They have claimed in the plaint that they are lawful and bona fide owners/purchasers of different flats in the said project. Although it is alleged that the sub-lease has been executed and registered before the Registrar T. Division, VI-B, Karachi but no copies of such sub-lease were produced till hearing of this application. Plaintiffs have filed receipts issued by the said office of Sub-Registrar. They have also filed undated copies of notices on Form PT-XIII, issued by the Urban Immovable Property Tax Department, Sindh at Karachi and contended that they are in physical possession of the same. The prayers in this suit are the same as of Suit No. 833 of 1996. The case of the defendant/KBCA as per their written statement is that the suit is barred for want of notice under section 20-A of the Ordinance, 1979; that the suit is barred for non-joinder of the necessary party i.e. Builder; that no cause of action is available to the plaintiffs; that the building plan for the suit premises was approved for ground + one for residential purpose but when it was found that the builder is violating the approved building plan a notice was issued to the builder on 12-4-1995; that the builder filed a Suit No. 191 of 1996 and obtained order of status quo from this Court and after violating order of status quo they raised construction up to the level of 6th floor; that it is a collusive suit filed by the so-called owners at the behest of the builders. It was prayed that the suit be dismissed as well as instant application Civil Miscellaneous Application No. 4579 of 1996 be also rejected. Suit No. 862 of 1996 10. There are two plaintiffs in this suit who have booked two apartments in Lakhani Towers, constructed on Plot No. 258, Lobo Street, Garden West, Karachi. The case of the plaintiffs is that the construction work in the project had been virtually completed; that the location of Lakhani Towers attracted to the plaintiffs and, therefore, they acquired flats in the same; that they were informed that the Chief Minister of Sindh had granted permission to the builder to raise construction for ground + 7 floors; (they impleaded builder as defendant No. 2) that after being satisfied with the statements of defendant No. 2, they paid necessary consideration for purchase of the flats; that the plaintiffs have invested substantial amount and are in physical possession of these two flats from 16-3-1996, that they are enjoying gas connection, electricity and water for which they have field different copies of receipts from respective departments. Plaintiffs have prayed for the declaration
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that the order dated 16-6-1996 passed by the defendant No. 1, namely, K.B.C.A. Be declared mala fide and without lawful authority. Suits Nos. 865 and 949 of 1996 11. In both these suits there are some thirty-three (33) plaintiffs in total, who are claiming to be the bona fide and lawful purchasers of the flats and shops in the project called as Sana Arcade, situated on 17-GR-1, Ghulam Hussain Kassim Road, Garden West, Karachi. In support, they have filed copies of registered Indentures of sub-lease, which appear to have been registered in the month of September, 1996. They have also filed photographs alongwith the plaint in order to show that Sana Arcade is fully occupied by the plaintiffs. Their case is that the plaintiffs being laymen are not aware of the technical and legal intricacies of the matter and that after investing substantial amount from their life savings they have obtained these flats/shops; that the defendant in collusion with the builders have completed the construction of the project; that the plaintiffs apprehend demolition of the project at the hands of defendant/KBCA in collusion with the builders and that such act is violative of their fundamental rights as guaranteed in the Constitution of Islamic Republic of Pakistan, 1973, They have prayed that the acts of the K.B.C.A. To demolish the project in question be declared to be illegal, mala fide and bad in law. They have also prayed for perpetual injunction against the defendant and its subordinate restraining them from demolishing the said project or from ejecting the plaintiffs. It is pertinent to note that despite serious allegations of fraud and mala fides against the builders, they were not impleaded as defendants. 12. The case of the defendant/KBCA is that the building plan was initially approved for ground plus first floor as residential unit but the builders/owners violated the approved plan and raised the construction up to six storeys by covering compulsory open space; that notice was issued to the builders under the provisions of the Ordinance, 1979, against which they filed a suit bearing Suit No. 1231 of 1995 and obtained order of status quo from the Court of VIIIth Senior Civil Judge, Karachi (East). It is the further case of the defendant/KBCA that since the order of status quo was being violated by the builders, the suit premises was sealed on 1st February, 1996 but the builders again obtained fresh order of status quo from this Court in Suit No. 99 of 1996. They defendant has prayed for rejection of stay application as Sana Arcade was constructed in violation of approved building plan and under the garb of order of status quo. Suit No. 911 of 1996 13. Some six plaintiffs have filed this suit claiming to have purchased flats in the project known as 'Chapal Gardens' constructed on main Abul Hasan Isphahani Road, Sector-12, Scheme 33, Gulzar- e-Hijri, Karachi, in pursuance of advertisements which appeared in the daily ' Jang', daily ' Qoumi Akhbar,' and daily 'Dawn', Karachi. They have annexed eight copies of advertisements with the plaint. They have impleaded the builder of the aforesaid project as defendant No. 2, who is being represented by Mr. Aziz Malik. It is the case of plaintiffs that from the period of January, 1993 till the date of filing of suit they have invested substantial amount in obtaining flats in the said project. Controversy in this suit began on 21-3-1996 when the plaintiff alongwith other allottees of the flat noted presence of the Official Assignee at the project site. They were informed that the Official Assignee was visiting the suit premises in pursuance of the order of this Court in Suit No.197 of 1995. It was under such circumstances as alleged in the plaint that the plaintiffs came to know that the construction being raised on the suit premises was not in accordance with the approved building plan, although they have asserted that the deviation from the said building plan was minor in nature and extends to one percent of the total area of construction. It is the further case of the plaintiffs that the defendant No. 2 have constructed major portion of the project and they being bona fide purchaser against valuable consideration are entitled for protection of their rights, therefore, they have prayed for the relief that the action of defendant No. 1, in cancelling No- Objection Certificate, in respect of the project be declared to be void and of no legal effect. They
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have also prayed for perpetual injunction against the defendant No. 1, from taking any adverse action in respect of the construction. They have filed Civil Miscellaneous Application No.…
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