1983 PLP 1740 (CLC)

The unauthorised construction' is being carried out on the above plot by one Haji Murad Ali who has, managed to get his building plan approved by the K. D. A. It is not understood how the K. D. A. could approve the plan of a building to be constructed on a plot which is not meant for that purpose but has exclusively been reserved by K. D. A. itself for the Hockey Stadium. Even in the amelioration plan of Drigh Township which has been prepared and approved by the Town Planners, K. D. A. St‑3/A measuring 7 acres (34,400 sq. yds.) has been shown as an amenity plot and has been reserved for Hockey Stadium. If you could have a glance at the amelioration plan you will see that the entire land surrounded by four roads has been shown as one plot of 7 acres (34,400 sq. yds.) which has been numbered as St‑3/ A. Again this whole plot has been allotted by K. D. A. to the District Council vide its allotment order quoted elsewhere for the exclusive purposes of cons tructing the Hockey Stadium. It appears that the approval of the building plan has been obtained by the interested party trough misrepresentation of facts. You are, therefore, requested to kindly look into the matter per sonally, examine the whole thing and get the approval of the building plan withdrawn. I will also then request you for stopping the unauthorised construction being carried out at the above amenity plot. With kindest regards Yours (Parvez Ahmed Butt) Mr. Abbas Husain Shah, Director‑General Karachi Development Authority Karachi. Following up the action the defendant No. 2 addressed a letter dated 20th October, 1973 Exh. 24/6 to Zahoor Ahmed Javid the licence architect of the plaintiff stating as follows:‑‑‑ By Registered Post 20th October, Mr. Zahoor Ahmed Javid Licensed Architect, c/o 121 Garden Market, Garden West, Karachi. Subject:‑‑Layout plan on portion of Survey No. 135 Deh Drigh Tapo Malir, Karachi. In view of Deputy Commissioner, Karachi D. O. letter No. PDCK/ 2691, dated 13th October, 1973, the approval of the above mentioned layout vide this office letter No. Deh/C‑45/72/5453, dated 26th December, 1972 is hereby withdrawn since it was obtained by misrepresentation of facts. (S. NAEEM AHMED), Town Planner (Control). Copy to :‑ (1) Haji Murad Ali son .of Syed Aulad Ali, care of Ration Shop No. 1349, Agra Taj Colony, Karachi. (2) Deputy Commissioner, Karachi, for information. (3) Architect (Control) K.D.A., for information. (S. NAEEM AHMED), Town Planner (Control). According to the plaintiff no prior notice was served upon them. A notice dated 18th October, 1973. Exh. 25/1 under Art. 69 of K. D. A . Order to stop construction work was issued by the defendant No.

2. They have led evidence to show that this notice was duly served on the plaintiff. This notice calls upon to stop the work on the said plot and is addressed to Masood Corporation through Javid with copy to the owner. The defendants No. 2 have produced two documents purporting to be receipts acknowledging the receipt of the notice but these documents have not been proved nor they have been exhibited. In the absence of any proof that the notice was served on the plaintiff or Masood Corporation the defendant No. 2 have failed to establish that the action had been taken after service of notice to the plaintiff. The defendants No. 2 have produced the noting sheets of the file from which it seems that the action was initiated on 17th September, 1973 but the action of the plaintiff was not considered to be illegal. However, after the receipt of the letter of defendant No. 1 the matter was renewed and accelerated on 15th October, 1972. On 18th October, 1973 direction was issued to issue notice to the plaintiff to stop the construction. According to the file of Defendant No. 2 the notices were prepared and signed the same day ,and were served the same day. Again on 20th October, 1973 an order to demolish the construction was passed and action was taken by the defendant No.

2. The D. W. 2 has stated that notice dated 18th October, 1973 was delivered to one Mehdi at the site which has been denied by the plaintiff. Even if this version of the defendant No. 2 is accepted there it is notice dated 18th October, 1978 which was served requiring the plaintiff to stop construction. No notice for demolition or removal of construction was served upon the plaintiff. It is clear from the evidence that the entire action was initiated on the letter of the defendant No. 1 and no show‑cause notice or opportunity to defend and explain that the plot was lawfully occupied by the plaintiff and that no misrepresentation has been made by the plaintiff was afforded to the plaintiff. The defendant No. 2 have taken the plea that their action of cancelling the layout plan and demolition is valid and legal. In support of this contention reference has been made to Art. 69 of K.D.A. Order, 1957. It does not provide that no notice shall be issued‑ to the other side. In the present case the defendant No. 2 had approved the layout plan and the building plan. The plaintiff was carrying out construction work according to the said approved plans. The defendant No: 2 on the basis of the letter of defendant No. 1 without making any, inquiry or even asking the plaintiff to explain, presumed that the layout plan was obtained by misrepresentation of fact and cancelled the layout plan and in. consequence thereof took subsequent actions. The defendants No. 2 were acting under the direction of defendant No. 1 and their entire action was arbitrary and not warranted by law as it was taken with out serving any prior notice on the plaintiff. In the facts and circum stances of the case the provisions of Art. 69 cannot be pressed in service. I therefore, hold that the action of the defendants No. 2 in cancelling the layout plan and subsequent action on it was illegal. The defendant No.2 will however be entitled to take any action and pass any order as provided under law after affording a proper opportunity of hearing to the plaintiff. Issues Nos. 4, 6 and 7.‑The defendants No. 2 have admitted demolition of boundary wall but have denied that there existed any other construc tion. Mr. Liaquat Merchant the learned counsel for the plaintiff has stated that the plaintiff does not press issue No. 7 under which damages have been claimed for demolition of the construction. Finding on these issues would have been necessary if the plaintiff would have claimed damages. As issue No. 7 has not been pressed no finding on issues Nos. 4 and 6 is necessary. Additional Issue : In the present suit the plaintiff has alleged that the plaintiff is the sole proprietor of Masood Corporation in whose favour plan had been approved. P.W. 1 has testified to this effect. Only P.W. 2 had stated that Masood Corporation is an unregistered partnership firm. However, he again stated that he had said so due to misunderstanding. He has explained that he had never seen Abdul Rahman and as there were several other persons who used to come to the office he thought all of them as partners. There is no other evidence to show that the plaintiff is a partner of Masood Corporation. In any event bar of section 69 of the Partnership Act will apply only when the plaintiff files a suit to enforce a right arising from a contract against either the firm or any past or present member of it or against any third party. The present suit is no based on either ground. My finding is, therefore, in the negative. Issue No.

8. The suit is decreed to the effect that the action of the defendant No. 2 to withdraw the layout plan and cancellation of the cons truction of plan on the basis of their letter dated 20th October, 1973 is illegal. The defendants No. 2 are permanently restrained from taking any action against the plaintiff on the basis of their letter dated 20th October, C 1973. It will however be open to the defendant No. 2 to take any action against the plaintiff according to law after serving proper notice on him, The parties to bear their own cost. M.Y.M. Suit decreed.