1991 PLP 1112 (MLD)

He has stated that the effect of series of highrise buildings is that there is air pollution, traffic problems, noise, water, sewerage and electricity problems resulting in adverse effect on health and character of the residents. (5) Plaintiff Abdur-Razaq. He has stated that the had moved into the present house in 1965. Clifton was then regarded as a posh area and all service facilities were available. It was the most secure part of Karachi. After 1965 there was increase in traffic and crimes and deterioration in water supply, sewerage and other services. Highrise buildings also adversely affected privacy. (6) Iqbal Hyder, a resident of the locality. (7) Zahid Adamji, and (8) Muhammad Hussain. On behalf of Defendant the following witnesses have been examined:- (1) Sardar 1kramullah of Southern Gas Co. He was examined and he has produced the No Objection Certificate. (2) Ex.DW-2/1. This is a Certificate by K.D.A. that there is water and sewerage facility available in Block-5 for construction of Plot No.G-19. (3) Muhammad Hafeezullah of K.DA. He has produced resolution of the Governing Body permitting construction of hollow plinth. He stated that additional floors have to be sanctioned in accordance with Town Planning Regulations, 1979. In case of any difficulty the matter may be referred to Director General. (4) Nandoo Ganesh, Sub-Engineer, Karachi Water and Sewerage Board. He stated that there is adequate water supply in Clifton area. He admitted that there were a number of complaints. (5) Abdul Majeed Khatti, Executive Engineer, K.E.S.C. He stated that electric supply in the Clifton area is enough and will still increase in future. He stated that they estimate the power requirement by highrise buildings and make assessment on the basis of their own formula. (6) Syed Shahnawaz Shah, Executive Engineer, Planning Department, K.E.S.C. He has stated that Grid Station in the Clifton has already been ,sanctioned and the work has been allotted for construction. My findings on these issues with reasons therefor are as under:- ISSUES NOS.1 and

2. The prayer in the plaint reads as under :- "The plaintiffs, therefore, pray for declaration: (a) That the Defendants are not entitled to commercialise the plot in the Clifton Area as it would create a public nuisance; especially in the absence of supporting basic infra-structure, overpopulation and shattering of the calm and peaceful, atmosphere of the area known as Kehkashan K.D.A. Scheme No.5 as sated in para. 16 above; (b) Permanent injunction restraining Defendants from erecting a multi-storeyed building which would create overpopulation, a public nuisance and shattering of calm and peaceful atmosphere as stated in para. 16 above; (c) Any other relief this Honourable Court deems fit:" Prayer (a) seeks a negative declaration to the effect that Defendant No.1 is not entitled to commercialise the plot in question. The defendant's written statement and the entire evidence on record clearly establishes that Defendant No.1 neither applied for commercialisation of the said Plot No.G-19, Block-5. K.DA. Scheme No.5, Clifton, nor was any permission for commercialisation granted by Defendant No.2 or by the K.DA. In any event the declaration sought in prayer (a) is not in respect of the status or character of the Plaintiffs and therefore, no such declaration can be granted under section 42 of the Specific Relief Act. Mr. Liaquat Merchant, learned counsel for Defendant No.1 gave an undertaking that Defendant No.1 would not apply for commercialisation of this plot. Hence I hold that the prayer in clause (a) is not available to the Plaintiffs, but this finding is made subject to the undertaking given by Mr. Liaquat Merchant. Regarding the relief sought in clause (b) of the prayer, it was contended by Mr. Liaquat Merchant, learned counsel for Defendant No.1 that it was in respect of an apprehended or anticipated public nuisance which, according to the Plaintiff, will be caused when the multistoreyed building of Defendant No.1 is constructed. He relied upon sub-section (g) of section 56 of Specific Relief Act and cited the following:- (1) (1957) 1 All E R 894 CA. (Attorney Gen. v. PIA Quarries Ltd.). (2) (1954) 2All E.R. 561(Soutport Corpn. v. Esso Petroleum Co.). (3) (1871) L.R.11 Eq. 338 (Harrison v. Good). . (4) (1752) (1752 I Dick 163) (Fish Monger's Co. v. East India Co.). (5) (1975) Ch. 43 (Hooper v. Rogers). It was next contended that the Plaintiffs have no justiciable right regarding the grant and approval of the building plans to defendant No.1 by Defendant No.2 and therefore, their case before this Court is limited only to their grievance regarding nuisance. Since the nuisance was only an apprehended one, therefore, even the prayer contained in clause (b) was not maintainable. I do not agree with this contention of the Defendant's counsel. Nelson in the book on law of Injunctions (Second Edition) at page 394 has stated "to justify an injunction restraining a threatened nuisance it must appear; (1) that the thing feared is really `threatened', i.e., `there must be such a great probability, that, in the view of ordinary men, using ordinary sense, the injury would follow,' and (ii) that if it takes place it must be `reasonably clear' that it will constitute a nuisance." The construction of nine-storeyed building or as the Defendants have shown, a seven-storeyed building with a hollow plinth ground floor in a calm, quiet and posh locality like Clifton, where up to now, highrise buildings exceeding ground plus 2, or more were rarely allowed, would in view of a man of ordinary prudence is certain to cause injury and would create a nuisance to the residents of the locality, particularly to the residents of those houses which are in the East and North of such a building, as it would block the wind direction in the summer season and the sunlight in the winter and is likely to cause nuisance on the face of it. Similar view was taken by me in the case of Yaqoob Ahmad and 4 others v. Messrs Jason Construction (Pvt.) Ltd. reported in 1989 C L C 739, where interim injunction was granted by me in that case and it was observed as follows:- "Admittedly the Plaintiffs building is to the North of the defendants' building and immediately next to it and therefore such a huge edifice in the South of plaintiff's building is bound to obstruct the sun in winter season and the; breeze in summer season when these are most essential and there is also an imminent danger of its collapse on plaintiffs building. No doubt the plaintiffs have not specifically pleaded that their easement of light and air has been interfered with but by their contention that the above construction has caused grave harm, insecurity and irreparable loss to the life and property of the plaintiffs, such a situation can be inferred and is sufficient to make out a case of injury and damage which is not likely to be remedied." My learned brother Saleem Akhtar, J. in the case of Hawa Bai v. Haji Ahmed reported in 1987 C L C 558, held that construction violating easement rights of light, air and privacy of plaintiff intended to be raised by the Defendant without approval of plan by a Building Control Authority and without consent of Plaintiff could not be allowed, even on the undertaking offered by the Defendant to the effect that in case proposed construction violate the easement rights of Plaintiff, same would be demolished by the Defendants on his own cost. In the recent case of Suleman Mala v. Karachi Building Control Authority and 3 others reported in 1990 C L C 448, a Division Bench of this Court relying upon the above two decisions as well as the decisions of this Court in some previous cases held as follows :-- "When constructions are raised without an approved Building Plan or in derogation of a plan, where approved, or in transgression of rights, interests or easements such as those of privacy or light or air, these all are remediable and enforcible matters though in different degrees and in different modes. The concept of burden of proof is also somewhat differently applicable in these matters. Thus, is relation to constructions involving lack of approved plans or transgressions of such plans or violations of the law, rules, or regulations, issues are simple enough, as the same can be determined without involving any serious countroversies as to facts and relief is not far to find. However, in relation to absolute, as distinguished from generic rights of an easementary nature, such as of light or air or those based on customs etc- such as of purdah or those guaranteed under the Constitution such as privacy of home, disputes may involve complicated controversies of facts, except where such rights are themselves taken due care of under the rules and regulations of the local Authority or the schemes relevant to an area. In the latter class of cases, observance of rules or adherence to the relevant schemes would ensure such rights, as well. Remedies, therefore, would be readily available." The English rulings cited by the counsel for Defendant No.1 relate to cases of uncertain fear such as fear of future water pollution, diminution of value of property, petty annoyance and form of activities that was indispensible to brokers, and would not apply in this case. I am, therefore, of the clear view that whereas no anticipatory injunction can be granted as a general rule, but it can certainly be granted in anticipation where the plaintiff is able to show that from the apprehended act, nuisance is practically certain to result. I am, therefore, of the clear view that when a person constructs a building in violation of an approved plan or in complete absence thereof, it is presumed that the rules and regulations of house building and the easement rights of those possessing and owning nearby houses are likely to be disturbed. No doubt in a case where the Defendant has raised construction strictly in accordance with the approved plan, the presumption will be that the rules and regulations of building control and the easement rights of the neighbourers have been properly taken care of. Even in that case the Plaintiffs can show that the rules and regulations have not been observed and that the easement rights of the neighbourers have been disturbed. The Courts can interfere when the construction has been raised without an approved plan or when it is in violation of an approved plan and in such a case the onus is on the Defendant to show the absence of violation and infringement. The Court can even interfere in the latter case when the construction is strictly in accordance with the approved plan, but the onus will be on the Plaintiff to show that there is breach of building rules and bye-laws and infringement of easement rights in such a case and the Court will have to keep in view the principles on which an authority having jurisdiction to decide the case, acts in exercise of that jurisdiction, while in the former case it is not so. Finding accordingly. ISSUE NO.3. This issue was not pressed by the Defendant's counsel. It is contended by the Defendant's counsel that the K.D.A. Governing Body's Resolutions Nos. 220 and 676 were passed in 1980 and 1981 respectively which permitted construction of multistoreyed buildings and commercialisation in Clifton Area. There were multistoreyed buildings in various blocks of Clifton especially on Main Clifton Road commencing from Clifton Bridge onwards upto the round-about opposite to the plots of the plaintiff and Defendant No.1. No objection was taken by the Plaintiff or other residents of the area to stop the construction of such multi-storeyed buildings. Even the withdrawal of N.O.C. in respect of M/s. Shaista Estates was challenged by a constitutional petition which was allowed. Hence the Plaintiff's suit was barred under the principles of estoppel, waiver and acquiescence. The contention of the Defendant's counsel has not impressed me very much. No doubt some high-rise buildings have been constructed as mentioned above, but these are not in so close proximity with the Plaintiff's plot as is the building of Defendant No.1. Apart from that these buildings are not so high as the building in dispute is. Hence finding in the negative. ISSUE NO.5: It is contended by the Defendant's counsel that it is evident from paragraph 16 of the plaint that the nuisance apprehended by the Palintiffs is clearly anticipatory in nature. The allegations in the plaint are vague and general and based on mere apprehensions. There is nothing in the evidence to indicate that a high-rise building, by itself constitutes a public nuisance as alleged and the suit is, therefore, clearly premature. I do not agree with the contention of defendant's counsel. As to whether the construction of the high-rise building of Defendant No.1 will result in nuisance on account of various apprehensions and situations which the plaintiffs apprehend, anticipate and fear, would depend on the height and size of the building, its proximity with the plaintiffs' building, the direction and soil on which it is situated and or, the fact whether all precautions have been taken and formalities have been observed to prevent the occurrence of such nuisance and problems. In any event the overpopulation, traffic hazards, bad roads, congestion, smoky and polluted environment, creation of sanitary condition, break down of essential services like electricity, gas, telephone and considerable reduction of water supply and other security problems present in overpopulated areas, arc matters which are relative to the general conditions prevailing in a locality and Court has to see that the same remain within reasonable limits. The responsibility for providing roads, sanitation, essential services, utilities and security of life and liberty, is, no doubt, the responsibility of the Government, but Defendant No.1, or for that matter any other person, cannot be allowed to lightly disrupt or threaten the same. It is common knowledge that in view of the growth in population and with a view to keeping up with the pace of development, K.D.A. and defendant No.2 in consultation with the Government of Sindh decided to permit commercialisation of certain properties and permission for raising of multistoreyed buildings for residential use and in certain cases commercialisation of the; ground floor and residential use of upper floors. Such buildings have been raised for the past over eight years in Clifton and other areas pursuant to the approval of plans and permission by K.D.A. and Defendant No.2. It is also an admitted position that the population of Pakistan and Karachi is increasing regularly, and there is a general influx in the city of Karachi. Therefore, provision for residence of persons, who cannot afford to stay in bungalows on plot of lands from 500 sq. yds. onwards, has to be made. The lower and middle income group can only stay in flats and it is illegal, unlawful and against the Constitution and Fundamental Rights to deprive citizens of Pakistan from staying in Clifton area on the alleged apprehension that an increase in the population of Clifton Area by persons living in flats/multistoreyed buildings will result in air and noise pollution and breakdown of essential services and utilities, so far as the same remains within reasonable limits and does not come into conflict with the easement rights of any person. N.O.Cs. from utility and public service agencies such as K.E.S.C., Water and Sewerage Board and Southern Gas Co. have been obtained by Defendant No.1 which establishes that relevant facilities are available or will be made available to the building of Defendant No.1 on the plot in question and the evidence discloses that there will be no unreasonable shortage or disruption in the supply of electricity, water or gas to other occupants of the area, if the building of defendant No.1 is constructed and occupied. The maintenance and widening of roads to meet the increase in population and consequent vehicular traffic is the responsibility of the Government and K.DA. Pollution caused by smoke emitted from motor vehicles is a universal problem all over the world and Karachi is no exception. However, Karachi being a sea port and on account of the presence of ozone, particularly near Clifton, the level of pollution of air is much less than other places and strong winds in Karachi also help to clear the pollution. The Plaintiffs have not proved or established the case of absolute nuisance. Their allegations are merely based on apprehension and anticipated problems which do not exist at present and may not arise to an unreasonable extent as growth and development go hand in hand. The Court has to see that the construction of a building does not exceed reasonable limits. If it exceeds reasonable limit, it is likely to cause the various. problems mentioned above resulting in public as well as private nuisance. Finding accordingly. ISSUE NO.6: The Defendant's Plot No.G-19, though immediately next to, but is several hundred feet away from the Plaintiff's Plots Nos.G-5 and G-10 and there exists a 240 ft. wide road between the two plots in addition to service roads on both sides. The Plaintiffs property is situated in Block-9, while the defendant's property is in Block-5. There are other multistoreyed buildings in Block-9 where the Plaintiffs reside'. Hence if the Defendant's building remains within reasonable height and size arid strictly in accordance with the rules and regulations, it cannot give a cause of action to the Plaintiffs. It is an admitted position that the building plans of defendant No.1 were approved and passed by defendant No.2. It is also an admitted position that the withdrawal/cancellation of the sail plans was pursuant to the notice dated 18-6-1988 addressed to Defendant No.2. The order of cancellation/withdrawal dated 18-6-1988 was passed by Defendant No.2 on the same date as the notice itself. The order was passed without a show cause or opportunity of hearing given to Defendant No.1 and has been suspended/stayed by the VI Senior Civil Judge vide his order dated 7-7-1988 which holds the field as it has not been set aside in appeal and a Constitutional Petition filed against the said order was, dismissed by this Court. It is also an admitted position that the Plaintiffs have no justiciable right with regard to the grant of approval of building plans and his cause of action is against the creation of nuisance and infringement of his rights of easement, so long as he does not prove that the approval is illegal and ultra-vires. The issue with regard to approval of building plans is, no doubt, a matter between Defendant No.1 and Defendant No.2. Moreover the order of the VIth Senior Civil Judge dated 7-7-1988 is final and holds the field and the order of defendant No.2 dated 18-6-1988 stands stayed/suspended and the Defendant No.2 has been restrained from interfering, preventing and/or obstructing the construction of Defendant No.1 pursuant to the approved building plans. Even otherwise in law, the Defendant No.1 is not liable to be restrained from carrying on with their construction under the relevant approval dated 15-3-1988 and 26-5-1988 so long as it is not stayed/suspended by an order of a Court of law. In this connection it is further pointed out that the Defendant No.1 having acted upon the approval of building plans acquired a legally vested right and such vested right cannot be taken away in an arbitrary manner. ISSUE NO.7: Defendant No. 2 has filed, with his written-statement, a letter dated 23-6-1988 from Government of Sindh to Director General, K.DA. with regard to formation of a Committee for clearance of high-rise building projects. This letter has no application to the plans of defendant No.1 as the same were approved much before this Committee came into existence. In any event all relevant approvals/N.O.Cs:, from public utility agencies were obtained by defendant No.1 The other letter dated 11-8-1988 from the Government of Sindh to the Director General, K.D.A. advising the latter to withhold all N.O.Cs./sanctions etc. has also no application as the approvals/sanctions in respect of the construction of defendant No.1 on the said plot were granted much earlier. Past and closed transactions which have been acted upon cannot be suspended, withheld or withdrawn in law. ISSSUE NO.8: It is evident from the evidence on record that no case of violation of privacy of the plaintiff or any other person has been established. In any event the construction on the said plot of defendant No.1 is more than 300 ft. away from the property of the plaintiff and that there exists 240 ft. dual carriage road plus two service roads between the two properties. There is nothing on record to indicate that the first two plans approved by Defendant No.2 for construction of the multistoreyed hollow plinth ground floor plus five storeys building of Defendant No. l unreasonably infringe on the privacy of the adjoining residents/occupants/neighbours. 1n any event the matter of privacy in the fast developing city of Karachi and the social environment in Clifton area is non-existent. Reliance was placed on the judgment reported in famous case of Fazl-e -Raziq (P L D 1980 S C 193) and the decisions of this Court, which followed the above decision, in the cases of Muhammad Munir v. Ahmad Ali Memon (P L D 1982 Kar. 425), Moosa Bhunji v. Hashwani S & S. Ltd. (P L D 1982 Kar. 9411) and R.G. Sehwani Co-op. Housing Society v. Haji Ahmad (P L D 1983 Kar.11) and it was contended and rightly so, that the Plaintiff's evidence had not fulfilled the test laid down by the Supreme Court. Finding accordingly. ISSUES NOS. 9 and 10: I am, therefore, of the considered view that whereas Defendant No.1's structure of hollow plinth ground floor plus five storeys is in order and does not call for any interference, the additional two floors i.e. 6th and 7th floors specially approved by Director General, K.DA. on 26-5-1988 are liable to be declared unlawful and violative of the public and private easements. I, therefore, decree the Plaintiffs' suit to the extent that Defendant No.1 shall not construct beyond the hollow plinth plus five storeys, and grant such declaration and injunction. Nazir has reported about certain violations in the construction already raised by Defendant No.1. The Karachi Building Control Authority is at liberty to take suitable action against such violations. In the peculiar circumstances of this case, it is ordered that the parties shall bear their own costs. A.A./A-992/K Order accordingly.