1990CLC83 (PLP)

4. On the other hand, Mr. Naraindas C. Motiani, learned counsel for the petitioners, has submitted that the petition is bona fide, the petition is not only for the enforcement of the easement rights but is also for the enforcement of the statutory duties on the part of the respondent No.2, there is no delay on the part of the petitioners as they had been making efforts to get the work stopped inter alia by making representation to respondents Nos.2 and 3 and that if the respondent No.l would be allowed to complete the construction and induct third persons, it would create more complications.

5. Mr. A. Hafeez Lakho, learned Advocate‑General, Sindh, appearing on Court notice, has made following submissions: (1) That section 91 C.P.C. has no application to the enforcement of statutory duty through a Constitutional petition. (2) That since admittedly respondent No.l has been raising unauthorised construction of a multistoreyed building in spite of the notices served on respondent No.1 by respondent No.2 and public notices, it is a fit case for grant of injunction or restraining respondent No.l from carrying out further construction work or allowing the above respondent to enter into an agreement for sale or part with the possession.

6. Mr. Sabir Hussain Kazilbash, learned counsel for respondents Nos.2 and 3, has submitted that there is no collusion or connivance on the part of above respondents' staff and that not only notice was served on respondent No.1 on 4‑3 1989 for the removal of the unauthorised construction but the notices have also been issued in the press. It is further submitted that respondent No.l upon service of the above notice dated 4‑3‑1989 filed Suit No.419/1989 in the Court of IV Senior Civil Judge (East) Karachi, and obtained status quo order on 13‑3‑1989 and under the cover of the said status quo order, she speeded the raising of unauthorised construction.

7. Adverting to Mr. Nasim Faruqui's first submission that the petitioners cannot enforce their alleged easement rights through a constitutional petition, as the same involved disputed questions of facts, it may be observed that a perusal of the memo of the petition indicates that though the petitioners have made a reference to the infringement of their rights of privacy which has been guaranteed by the Constitution but have also referred in extenso the non‑performance of A statutory duty by respondents Nos.2 and 3 and, therefore, it is not correct to say that the petition is for the enforcement of the easement rights simpliciter, adjudication of which will involve the disputed questions of facts. Mr. Nasim Faruqui in support of his above submission has referred to the case of (1) Mian Muhammad and others v. The Government of West Pakistan, through the Secretary, Revenue Department, Government of Pakistan, Lahore reported in 1968 S C M R 935, and (2) The case of Aftab Hussain v. Collector of Central Excise and Land Customs, Quetta and 2 others reported in 1987 P Cr. L J 1413. In the first case, the Honourable Supreme Court and in the above second case the Baluchistan High Court have inter alia held that in a writ petition disputed questions of facts cannot be adjudicated upon. It will suffice to observe that the above cases have no application to the present case, as observed hereinabove the petitioners are in fact enforcing the statutory duty cast upon respondents Nos.2 and

3. In this regard, it may be pertinent to reproduce relevant portion from an unreported order dated 24‑5‑1989, passed by a Division Bench of this Court in the case of Abdul Wahid Butt v. Mrs. Asma and others in C.P. No.D‑290/89, while granting an ad interim injunction against raising of unauthorised construction of the nature in issue: "We cannot be unmindful of the fact that it has now become common practice in the Karachi City that unauthorised constructions in the form of multistoreyed buildings are being raised which affect the neighbours and the other residents of the locality as the supply of water and electricity are affected. There seems to be a marked distinction between a right to maintain a suit and a right to maintain a constitutional petition. In the former case a plaintiff should have a legal right, whereas in the latter case a petitioner may not have personal legal right in stricto senso, but may have some interest in the subject‑matter of the writ petition. In the instant case as pointed out hereinabove the private respondents have raised and are still raising constructions in violation of the approved building plan and the building bye‑laws. Respondent No.3 as a statutory functionary under the Sind Building Control Ordinance, 1979 is under the statutory duty to ensure the compliance of the building bye‑laws. It cannot be said that the petitioner has no interest in ensuring that respondent No.3 discharges the above statutory duty. One of the prayers in the petition is that respondent No.3 be directed to, demolish unauthorised constructions put up by the private respondents. We, therefore, are of tentatively view that prima facie the petitioner has locus standi to maintain above petition. We are also inclined to hold that it is a fit case, in which a prohibitory interim injunction should be granted:'

8. As regards Mr. Nasim Faruqui's second submission that since the petitioners are seven in number, they are in fact inter alia complaining of the commission of public nuisance and, therefore, the petition could not have been filed without the permission of the Advocate‑General, Sindh, under section 91 C.P.C., it may be observed that in furtherance of his above submission, he has referred to the provisions of the above section 91 C.P.C., which read as follows:‑ "

91. Public nuisances: ‑(1) In the case of a public nuisance the Advocate General, or two or more persons having obtained the consent in writing of the Advocate‑General, may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumsances of the case. (2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisons." A perusal of the above‑quoted section indicates that in the case of a public nuisance a suit can be instituted by two or more persons after obtaining consent in writing of the Advocte‑General, even if the persons filing the suit have not suffered any special damage. It may also be noticed that subsection (2) of the 'above section 91 makes it clear that nothing in the section shall be deemed to g limit or otherwise affect any right of suit which may exist independently of this provision. In our view, the contention of Mr. A.Hafeez Lakho, learned Advocate General, Sindh, that above section has no application to a constitutional petition which has been riled for the enforcement of statutory duty cast upon a statutory corporation under the relevant statute, seems to be correct.

9. Mr. Nasim Faruqui's above third and fourth contentions can be conveniently dealt with together. It is an admitted position that respondent No.1 got her building plan approved from respondent No.2 on 27‑11‑1988 for putting up a residential bungalow comprising of ground plus one. Instead of raising a residential bungalow, respondent No.1 started raising multistoreyed building and upon service of notice dated 4‑3‑1989 by respondent No.2 asking her to remove the unauthorised construction in deviation of the approved building plan, she filed aforesaid Suit No.419/1989 in the Court of IV Senior Civil Judge (East) Karachi, and obtained status quo order on 13‑3‑1989_ The object of a status quo order is to maintain the subject‑matter of the suit as it was at the time of passing of the status quo order and not to alter it or to create a new situation. The status quo order in the instant case did not authorise respondent No.l to go on with the unauthorised construction of a multi‑storeyed building in place of a residential budgalow of ground plus one, but its object was to prohibit respondent No.2 from demolishing the unauthorised construction which had by then already been raised. Prima facie respondent No.1 instead of maintaining status quo, speeded up the construction work in order to alter the status quo of the subject‑ matter of the suit. It may be pertinent to observe here that it has become a common practice in Karachi that the developers/builders after getting their plan approved for ground plus one raise multistoreyed buildings and when they are served with a notice by the Building Control Authority they file suit in the subordinate Courts and obtain status order and under the cover of the status quo order, they go on with the construction of the unauthorised building. In the instant case also the same has been done. Respondent No.2 has not brought anything on record to indicate that after the passing of the status quo order by the learned Senior Civil Judge on 13‑3‑1989, they filed any application before the learned Senior Civil Judge pointing out to him that the respondent No.1 had been going on with the unauthorised construction under the cover of the status quo order. This omission on the part of the respondent No.2 clearly indicates that it has not taken action which is expected of it under the law. We may also observe that news items also appeared in the various newspapers in the months of March and April, 1989, as to the unauthorised constructions inter alia in English daily evening newspaper `STAR' of 28th March, 1989, English daily newspaper `DAWN' of 6th, 9th and 10th April, 1989, and in daily Urdu newspaper `JANG' of 24th March 1989, 1st April, 1989 and 6th April 1989 (see Annexure `F to the petition). There was also a public notice of a prominent size given by respondent No.2 in daily English newspaper `DAWN' of 19th April 1989, pointing out that despite of the notices issued by Karachi Building Control Authority, some builders still continuing construction of high rise buildings under the shadow/cover of Court's status quo/stay order and that the general public was advised in their own interest not to enter into any transaction or booking with them (Annexure `A' to the petition). Another public notice was also published by respondent No.2 on 4th August 1989 and 5th August 1989 in daily English newspaper `DAWN' and Urdu news‑paper daily `JANG' respectively, in which the numbers of the plots were given including of the plot in question and the public was informed that the builders were constructing unauthorised builjings under the shadow/ cover of Court's status quo order and that the public was asked not to enter into any contract of purchase (please refer to pages No.117 and 119 of the paper‑book of this petition). ' 10. ' In our view because of the factum that in spite of the service of a notice but may have some interest in the subject‑matter of the writ petition. In the instant case as pointed out hereinabove the private respondents have raised and are still raising constructions in violation of the approved building plan and the building bye‑laws. Respondent No.3 as a statutory functionary under the Sind Building Control Ordinance, 1979 is under the statutory duty to ensure the compliance of the building bye‑laws. It cannot be said that the petitioner has no interest in ensuring that respondent No.3 discharges the above statutory duty. One of the prayers in the petition is that respondent No.3 be directed to, demolish unauthorised constructions put up by the private respondents. We, therefore, are of tentatively view that prima facie the petitioner has locus standi to maintain above petition. We are also inclined to hold that it is a fit case, in which a prohibitory interim injunction should be granted:'

8. As regards Mr. Nasim Faruqui's second submission that since the petitioners are seven in number, they are in fact inter alia complaining of the commission of public nuisance and, therefore, the petition could not have been filed without the permission of the Advocate‑General, Sindh, under section 91 C.P.C., it may be observed that in furtherance of his above submission, he has referred to the provisions of the above section 91 C.P.C., which read as follows:‑ "

91. Public nuisances: ‑(1) In the case of a public nuisance the Advocate General, or two or more persons having obtained the consent in writing of the Advocate‑General, may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case. (2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisons." A perusal of the above‑quoted section indicates that in the case of a public nuisance a suit can be instituted by two or more persons after obtaining consent in writing of the Advocte‑General, even if the persons filing the suit have not suffered any special damage. It may also be noticed that subsection (2) of the 'above section 91 makes it clear that nothing in the section shall be deemed to g limit or otherwise affect any right of suit which may exist independently of this provision. In our view, the contention of Mr. A Hafeez Lakho, learned Advocate General, Sindh, that above section has no application to a constitutional petition which has been riled for the enforcement of statutory duty cast upon a statutory corporation under the relevant statute, seems to be correct.

9. Mr. Nasim Faruqui's above third and fourth contentions can be conveniently dealt with together. It is an admitted position that respondent No.1 got her building plan approved from respondent No.2 on 27‑11‑1988 for putting up a residential bungalow comprising of ground plus one. Instead of raising a residential bungalow, respondent No.1 started raising multistoreyed building and upon service of notice dated 4‑3‑1989 by respondent No.2 asking her to remove the unauthorised construction in deviation of the approved building plan, she filed aforesaid Suit No.419/1989 in the Court of IV Senior Civil Judge (East) Karachi, and obtained status quo order on 13‑3‑1989_ The object of a status quo order is to maintain the subject‑matter of the suit as it was at the time of passing of the r status quo order and not to alter it or to create a new situation. The status quo order in the instant case did not authorise respondent No.l to go on with the unauthorised construction of a multi‑storeyed building in place of a residential budgalow of ground plus one, but its object was to prohibit respondent No.2 from demolishing the unauthorised construction which had by then already been raised. Prima facie respondent No.l instead of maintaining status quo, speeded up the construction work in order to alter the status quo of the subject‑ matter of the suit. It may be pertinent to observe here that it has become a common practice in Karachi that the developers/builders after getting their plan approved for ground plus one raise multistoreyed buildings and when they are served with a notice by the Building Control Authority they file suit in the subordinate Courts and obtain status order and under the cover of the status quo order, they go on with the construction of the unauthorised building. In the instant case also the same has been done. Respondent No.2 has not brought anything on record to indicate that after the passing of the status quo order by the learned Senior Civil Judge on 13‑3‑1989, they filed any application before the learned Senior Civil Judge pointing out to him that the respondent No.l had been going on with the unauthorised construction under the cover of the status quo order. This omission on the part of the respondent No.2 clearly indicates that it has not taken action which is expected of it under the law. We may also observe that news items also appeared in the various newspapers in the months of March and April, 1989, as to the unauthorised constructions inter alia in English daily evening newspaper `STAR' of 28th March, 1989, English daily newspaper `DAWN' of 6th, 9th and 10th April, 1989, and in daily Urdu newspaper `JANG' of 24th March 1989, 1st April, 1989 and 6th April 1989 (see Annexure `F to the petition). There was also a public notice of a prominent size given by respondent No.2 in daily English newspaper `DAWN' of 19th April 1989, pointing out that despite of the notices issued by Karachi Building Control Authority, some builders still continuing construction of high rise buildings under the shadow/cover of Court's status quo/stay order and that the general public was advised in their own interest not to enter into any transaction or booking with them (Annexure `A' to the petition). Another public notice was also published by respondent No.2 on 4th August 1989 and 5th August 1989 in daily English newspaper `DAWN' and Urdu news‑paper daily `JANG' respectively, in which the numbers of the plots were given including of the plot in question and the public was informed that the builders were constructing unauthorised buildings under the shadow/ cover of Court's status quo order and that the public was asked not to enter into any contract of purchase (please refer to pages No.117 and 119 of the paper‑book of this petition). ' 10. ' In our view because of the factum that in spite of the service of a notice by respondent No.2 for the removal of unauthorised construction upon respondent No.1 in the month of March 1989 at the initial stage of the unauthorised construction, respondent No.l after obtaining status quo order from the Court of I V Senior Civil Judge (East) Karachi, speeded up the construction and in spite of the above public notices continued to go on with the unauthorised construction, cannot be allowed to urge that she was allowed by the petitioners to go on with the construction of unauthorised building or that there is any delay on their part, nor she can be allowed to raise the above plea that she had invested considerable amount of capital involving millions of rupees and she had booked most of the flats. We may also refer to Section 7‑A of the Ordinance, which reads as follows:‑‑ "7‑A. Violation of certain provisions.‑‑Where the provisions of subsection (1) of section 6 are violated the building may without prejudice to any other action including sealing of the building or ejectment of the occupants be ordered by the Authority or any officer of the Authority authorised in this behalf to be demolished, at the cost of the builder in the case of public buildings and the owner in other cases:" A plain reading of the above section shows that when a‑building is constructed in violation of the provision of section 6, i.e. without the approval of the plan or in deviation of the plan, respondent No.2 has the power to seal the building or eject the occupants of such building and to demolish the same at the cost of the builder. We arc inclined to hold that in spite of the above provisions and in spite of the above public notices it was not prima facie proper on the part of the respondent No.1 to have booked any flat/flats in favour of third persons. We may point out that though respondent No.1 in her counter‑affidavit read with further counter‑affidavit has made an averment that most of the flats have been booked but she has neither given the numbers of the flats so booked nor the dates on which they were booked nor the names of the persons, in whose favour the same have been booked.

11. As regards Mr. Nasim Faruqui's submission that the petition is not bona fide and, the same has been filed by the petitioners in order to extort money, it will suffice to observe that the above allegations are denied by the petitioners and there is nothing on the record to indicate prima facie that the above allegation of respondent No.l is true.

12. Mr. Nasim Faruqui has also submitted that apart from the bungalow of petitioner No.1, the bungalows of other petitioners are situated several hundred feet away from the plot, but it will ‑suffice to observe that since we have not examined the question of infringement of easement rights, it is not necessary to examine the above submission tic also submitted that there are a number of high rise buildings in the vicinity of the plot. Even if we were to accept the above factual assertion, which has been contested by the petitioners, that would authorise the petitioners to raise an unauthorised multistoreyed building.

13. Then it was contended that factually petitioner No1 allowed water connection and electricity supply from her bungalow to the respondent No.1 and, therefore, she is estopped from raising any objection to the construction of the building. In this regard, it may be observed that there is nothing on record to indicate that the petitioner No.1 had granted the above facility for raising multistoreyed building and not for residential bungalow of which respondent No.1 has the approved plan. In any case, there are other petitioners apart from the petitioner No.1 in this petition.

14. We are of the view that if we were not to grant an ad interim injunction, it would not be just and proper, as admittedly respondent No.1 has no legal basis to go on with the construction work of an unauthorised building under the cover of status quo order. Though it has been averred that the construction work is at E the stage of finishing work, there is no guarantee that respondent No.l will not construct one or two additional storeys. Furthermore if respondent No.l is not restrained from completing or entering into any agreement of sale of flats or parting with the possession thereof, it will create further complications.

15. Apparently the instant case falls within the category of public litigation as the public‑at‑large is interested to ensure that the constructions are not raised in violation of the building bye‑laws and the Ordinance by misusing a status quo order of a Court. The intervention by this Court will discourage the aforesaid illegal practice obtaining in Karachi.

16. We may also observe that there seems to be lapse on the part of respondent No.2 in allowing respondent No.l to go on with the un‑authorised construction under cover of a status order and not filing of an application before the Senior Civil Judge for an interim order against respondent No.l.

17. We, therefore, allow the above application and restrain the respondent C No.1 from carrying out any further construction work and from entering into any agreement of sale and/or completing any agreement of sale or parting with the possession of any of the flats. The Nazir is appointed as Commissioner to visit the site and to prepare the report today as to the stage of the construction. The petitioners will deposit a sum of Rs.1,000.

18. We may observe that the above observations are tentative and are to be ignored at the time of regular hearing of the petition. We have to make above observations as the learned counsel for the parties argued the same with full vehemence.

19. These are the reasons in pursuance of the short order of even date. Mr. Nasim Faruqui requested orally for the stay of the operation of the above order, which request we declined. AA/S‑487/K Application allowed.