P L D 2011 Karachi 204 (PLP)

MAQBOOL BAQAR, J.

The applicants, through the above Revision Application, have impugned the order. dated 19th July, 2010 passed by learned Vth Additional District Judge, Hyderabad, whereby the learned Judge dismissed the applicants' Civil Miscellaneous Appeal No.41 of 2008 and upheld the order dated 21-10-2008 passed by learned Vth Senior Civil Judge, Hyderabad, whereby the learned Senior Civil Judge dismissed the. Applicants' application under Order XXXIX Rules 1 and 2, C.P.C. filed in First Class Suit No.457 of 2008. The brief facts of the case are that in August, 2008, the applicants/plaintiffs filed a suit for declaration and permanent injunction against the respondents/defendants for the following relief: (a) Declaration that the order dated 29-11-2007 passed by defendant No.3 converting the residential Bungalow of defendants 1 (i) to (iii) into commercial and approving the building plan and Ijazatnama dated 29-5-2008 are without jurisdiction void, mala fide violation of easementary rights of plaintiffs and not binding on the plaintiffs. (b) That Permanent injunction be issued restraining the defendants from acting upon the order dated. 29-11-2007 and Ijazatnama dated 29-5-2008 and from raising commercial building on Plot No.30 and from raising commercial building on Plot No.3 and in any manner from interfering/affecting the right of light, air parda and peaceful environment of the plaintiffs. (c) Any other relief this Honourable Court deems fit may be granted. (d) Costs of suit be borne by the defendants. It is alleged in the plaint that the applicant/plaintiff No.1 owns and possesses, a Bungalow on Plot No.32 admeasuring 667 Sq. 'Yds and the applicant/plaintiff No.2 owns and possess Bungalow on Plot No.31 admeasuring 600 Sq. Yds. whereas respondent/defendant No.1 owns Bungalow No.30 admeasuring 776 sq. yds; all Bungalows situated in Block-C, Unit No. VII, Latifabad. It is further alleged that all the three Bungalows are single storeyed and were constructed prior to 1970 in a residential area having 40 ft, wide roads on the north, south and west thereof and further that all the three Bungalows are in one row, one adjoining the other. In September, 2007 respondent/defendant Nos.1(i), (ii) and (iii) applied to respondent No.3 for conversion of Plot No.30 into a commercial plot and also for approval of a plan thereon for a building consisting of ground plus six floors having two shops on the ground floor and six flats on the above floors thereon. The Additional Director Planning and Development Control of respondent/defendant No.3, without any lawful authority and without any notice to the applicants/plaintiffs allowed the conversion and approved the building plan vide order dated 29-11-2009. The applicants/plaintiffs applied to respondents/defendants Nos.2 and 3 for rejection of the said purported conversion and plan but to no avail. It is further alleged that the impugned conversion and construction shall violate the privacy of the applicants/plaintiffs and shall adversely affect their right to light and air and that in the event the impugned construction is allowed it will create nuisance and shall disturb the peaceful environment which the applicants/plaintiffs and the inmates of Bungalows Nos.31 and 32 have been enjoying since inception. Along with the plaint, the applicants/plaintiffs also filed an application under Order XXXIX, Rules 1 and 2, C.P.C. The application was however, dismissed by the Senior Civil Judge through the impugned order and an appeal against such dismissal was also dismissed by Vth Additional District Judge, Hyderabad, through the first impugned order. Mr. Jhamat Jethanand, the learned counsel for the applicants/plaintiffs submitted that the' impugned conversion and approval are wholly illegal and without authority. He submitted that the respondents No.3, Hyderabad Development Authority, have had absolutely no power and or jurisdiction to allow the impugned conversion and to approve the building plan for construction, of a multi-storeyed commercial building on the, plot in question. The learned Counsel submitted that in terms of section 195 of the Sindh Local Government Ordinance 2001 read with Item 64(2) of Schedule 6 thereof, it is only a Local Government that can vary the terms and conditions of any lease of land or building, owned, managed, maintained or controlled by it and that too after giving a reasonable notice to the person concerned and that in terms of section 52 of the said Ordinance, the functions, inter alia, of Housing and Physical Planning Department have been entrusted to respondent No.2 whereas the respondent No.3, Hyderabad Development Authority, which claims to be a Buildings Control Authority within the meaning of Sindh Buildings Control Ordinance 1979, does not have any powers to convert the use and/or status of any land. Learned Counsel further submitted that even otherwise the impugned purported conversion is illegal and without any authority and referred to the purported order of conversion and the No Objection Certificate for approval of building plan in question and submitted that though the letter says that the competent authority has allowed the conversion of land use from residential to commercial, however, neither it is disclosed in the letter as to who is that competent authority nor any such sanction/approval has been produced by the respondents throughout. The learned Counsel then referred to the No Objection Certificate, dated 17-5-2008 issued by Building Control Department of respondent No.3, Annexure-G/3 page 111 of the file, which also says that the project in question has been examined and considered by the Competent Authority on the recommendation of Technical Committee HDA, in its meeting held on 12-9-2007 on the basis of No Objection Certificate issued by Directorate of Planning and Development Control Department, HDA, but no such recommendation or any minutes of meeting dated 12-9-2007 have been produced by the respondents. Learned Counsel submitted that though the said No Objection Certificate itself states that the same has been issued exclusively subject to strict adherence to certain conditions as mentioned therein ,whereas Condition-10 thereof requires a prior permission from the respondent No.2 however, as evident from letter dated 18th March, 2009 issued by respondent No.2, neither any No Objection Certificate for the conversion of the subject plot from residential into commercial nor any permission for construction of a multi-storeyed building has been 'issued by respondent No.2. Mr. Jhamat Jethanand also submitted that the impugned construction shall adversely affect the rights and privilege enjoyed by the applicants/plaintiffs, the same shall degrade the environment, cause nuisance and congestion and will result in blockade of light and air to the applicants/plaintiffs, and further that the impugned conversion and approval of the building plan and so also the proposed construction, which is at the initial stage, is wholly illegal and without any lawful sanction and/or authority, are violative of the applicants/plaintiffs' rights. He further submitted that erection of an illegal/unauthorized multi-storeyed commercial building shall cause irreparable damage to the applicants/plaintiffs and that in the facts and circumstances of the case the applicants/plaintiffs have made out a prima facie case and balance of convenience also lies in their favour. He prays that the impugned orders be set aside and the respondents Nos.1(i), (ii), and (iii) be restrained from carrying out any construction/activity on the subject plot. On the other hand Mr. Aijaz Ali Hakro, the learned counsel for respondents Nos. 1(i), (ii) & (iii) submitted that the impugned conversion and approval of the building plan is in conformity with the laws and that the respondent No.3 being a Buildings Control Authority having jurisdiction in the area was/is fully competent and authorized to grant the impugned conversion and approval of the building plan. The learned Counsel referred to the Circular dated 7th July; 2007 filed by Respondent No.3, wherein it is stated that though under sections 53(3)(iii) and 54(a), (b), (c) and (d) of the Sindh Local Government Ordinance, 2001, the Taluka Municipal. Administration shall prepare spatial plans for the Taluka in collaboration with Union Councils, including plans for land use, zoning and functions for which the Taluka Municipal Administration is responsible, however, as there is no any technical staff to deal with such matters as such Taluka Municipal Administrations are debarred from exercising those powers pertaining to approval of private housing schemes and public buildings etc. and advised Taluka Municipal Administrations and Union Councils to refrain from such exercise of powers and desist from issuing/approving private housing schemes as well as public/commercial buildings with immediate effect. The learned counsel in his endeavour to show that the status of the plot in question has been converted from residential to commercial, has referred to a letter dated 23-5-2007 in terms whereof certain proposal presented for conversion of land use was approved under an interim policy till the approval of Building Bylaws and Town Planning Regulations, which are under. preparation and further that the No Objection Certificate issued to the builders by the Building Control Department, Town Planning Department, HDA, may be submitted in the meeting of governing body of HDA for its perusal. Amongst the various plots, conversion whereof has been purportedly approved in terms of the said letter and as mentioned therein are the plots located at "Ponay Saat to Allah Wali Masjid", section of the "Road of Unit No.7". The learned Counsel submitted that the plot in question falls within the said area, however contrary to the learned Counsel's claim, it is not just that the plots in question are not situated on the afore-designated stretch of the said road but are not even situated along the entire length of the said road but are situated in Block-C, Unit No.7 of Latifabad, along with a 40 feet wide road. Mr. Hakro further submitted that the applicant/plaintiffs' suit is barred they served a notice under section 20-A of the Sindh Buildings Control Ordinance, 1979 before filing the suit. In support of his contention he has relied upon the case of Ardeshir R. Cowasjee and others v. G.D. G.K. and others (2008 CLC 1166). He further submitted that under the law there is no bar against conversion of user/nature of a plot and relied upon the case of Jawad Mir Muhammadi and others v. Haroon Mirza and others (PLD 2007 SC 472) in support of his contention. The learned counsel in support of his contention that the impugned conversion and the approved building plan have been lawfully granted also relied upon the case of Mrs. Alba D'SA and others v. Mrs. Naheed Pabani and others (2008 YLR 738). Mr. Bahadur Ali Baloch, the learned counsel for respondent No.3 adopted the arguments of Mr. Aijaz Ali Hakro. He however, submitted a photostat copy of letter dated 11th June, 2005 issued by Section Officer, Government of Sindh, Local Government Katchi Abadis and Spatial development department, addressed to respondent No.3 complaining that No Objection Certificate for approval of building plan in Taluka Latifabad, Hyderabad City and Qasimabad are not being obtained from the Managing Director WASA and Director P&DC, HDA, and advising compliance of the instructions already on record for getting No Objection Certificate from WASA and Director P&DC, Hyderabad, for approval of building plan including subdivision, amalgamation, and change of land use. Mr. Shoukat Ali Jaffery, learned counsel for the respondent No.2 in support of the Revision Application submits that the impugned conversion and the approval of the building plan are wholly illegal and' without jurisdiction. He submits that the respondent No.3 has had absolutely no jurisdiction to convert the user/status of the plot and to approve a ground plus three storeyed building containing shops and flats on a plot, which is located in a purely residential area and is exclusively designated for ground plus one storeyed Bungalows. He submits that the respondent No.2 has not granted any no objection for the impugned conversion. Admittedly the plot in question is a residential plot situated in a residential area. In terms of the Sindh Local Government Ordinance, 2001 read with Item 64(2) of Schedule-6 thereof, it is only the Local Government i.e. the respondent No.2 in the present case, that was/is competent to vary or alter the terms and conditions of the lease of the subject plot and that too after giving a reasonable notice to the person concerned, which in the present case are the applicants/plaintiffs and the occupants/owners of the other properties in the neighbourhood who are likely to be affected by such conversion, whereas in terms of section 52 of the Ordinance the functions, administration and financial management of the offices of Local Government including of higher Housing and Physical Planning Department stand entrusted to the Taluka Municipal Administration, in the present case the respondent No.2, whereas the respondent No.3 purportedly appointed under section 4 of the Sindh Buildings Control Ordinance, 1979 as is evident from the preamble of the Ordinance 1979, has been so appointed 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 dangerous and dilapidated buildings within its jurisdiction. None of the various provisions of the 1979 Ordinance empowers the respondent No.3 to convert the status of any plot and as such, the impugned conversion and approval of the building plan by the respondent No.3 are wholly without jurisdiction, illegal and void ab initio. The purported circular dated 7th July, 2007 relied upon by Mr.Aijaz Ali Hakro merely debars the Taluka Municipal Administrations from exercising functions pertaining to approval of private housing schemes and public buildings etc., conferred upon them under sections 53(3)(iii) and 54(a), (b), (c) and (d) of the 2001 Ordinance for the reason that there is no any technical staff to deal with such matters with the Taluka Municipal Administration and that the same does not confer the above powers to respondent No.3 in the present case and/or for that matter to any Building Control Authority; on the contrary through the above circular, reiterates the legal position that in terms of various provisions of the 2001 Ordinance the functions and powers of spatial planning including plans for land use, zoning etc. fall within the domain of Taluka Municipal Administrations. The impugned order of conversion dated 29-11-2007, at page 109 of the file, though states that the competent authority has allowed the conversion, however, it has not been mentioned in it as to who is the competent authority and when and in what manner such conversion has been allowed. The letter dated 23-5-2007 referred to by Mr. Hakro to show that the conversion has been approved and sanctioned by the Governing Body of respondent No.3 in its meeting held on 3-5-2007 though states that the proposal presented for conversion of certain plots as mentioned in the .letter, was approved, as an interim policy and that it has been decided that NOCs issued to the Builders by the respondent No.3 may be submitted in the meetings of Governing Body HDA for its perusal, however, the subject plot does not fall within any area, proposal for conversion whereof was purportedly approved and even Item-9 which, according to Mr. Hakro covers the subject plot, does not even pertain to the area in question; on the contrary it pertains to a section of road of Unit No. VII, being "Ponay Saat to Allah Wali Masjid", whereas the subject plot is admittedly situated in a residential area, in Block-C, Unit No.VII of Latifabad along with a 40 feet wide road and therefore it is now evident that the purported conversion order is not based on any approval/sanction by any of the department/functionary of respondent No.3, as wrongly claimed therein. In the circumstances, the impugned purported conversion and approval of the building plan are wholly without jurisdiction, illegal and mala fide, the same adversely affect the rights and privileges of the applicants/plaintiffs and will degrade the environment, cause congestion and other nuisance, block air and light enjoyed by the applicants/plaintiffs. With regard to the contention of Mr. Hakro that since the applicants/plaintiffs have filed suit without serving notice under section 20-A of the Sindh Buildings Control Ordinance, 1979, it would suffice to observe that, as held in the case of Ardeshir R. Cowasjee, supra, relied upon by Mr. Hakro in support of his contention, though a suit for declaration and injunction filed without serving notice 20-A of the Sindh Building Control Ordinance, 1979 would be barred under the law but such suit would however be maintainable despite non-service of such notice if the impugned actions are alleged to be mala fide, without lawful authority, illegal and/or suffer from colourable exercise of power and/or without jurisdiction and in violation of natural justice, and since in the above case, as noted above, the impugned orders are not only illegal but have been passed without jurisdiction and are mala fide, the applicants/plaintiffs' suit fall within the above exception. Furthermore though the impugned No Objection Certificate dated 17-5-2008 at Page-111 of the file clearly stipulates that No Objection Certificate has been issued subject to the strict adherence in letter and spirit to certain conditions as specified therein and the Condition-10 whereof clearly requires the sponsor the respondents Nos.1(i), (ii), (iii) herein, to obtain prior permission from respondent No.2 however, contrary to the respondents No.l(i), (ii), (iii) and 3's claim and as evident from respondent No.2's letter dated 18-3-2009 no No Objection Certificate for the impugned conversion and construction has been issued to the respondents Nos.1(i), (ii) and (iii) by respondent No.2. The other judgments relied upon by Mr. Hakro are of no avail to him as the case of Jawad Mir Muhammadi (PLD 2007 Supreme Court 472) itself held that conversion of user/nature of plot can be ordered by the authorities only after issuance of public notice calling upon the residents of locality to submit their objections to such conversion and deciding the same after 'providing them opportunity of hearing and that violation of such mandatory' requirement would not be in consonance with law. Admittedly no notice was at all issued prior to the impugned conversion and/or approval. The case of Mrs. Alba D 'SA and others, supra, is also distinguishable from the present case as, as noted in the judgment, the 'impugned construction in that case was jointly and severally approved by the City Government Karachi and the Government of Sindh, who were/are the lessors of the property and are overall responsible for town planning within the Province of Sindh, and also by Karachi Building Control Authority. In view of the foregoing, I, would, allow the Revision Application, set aside the impugned orders and restrain the respondents Nos.1(i), (ii), (iii) from raising any further construction on the subject plot till the disposal of the applicants/plaintiffs suit.

2. In view of the foregoing this application has become infructuous and is accordingly dismissed.

3. Through this application the applicants/plaintiffs have complained violation of the status quo order passed by this Court in 1st Appeal No.4 of 2009, the application is therefore, not maintainable in the present proceedings and is dismissed accordingly. The applicants/plaintiffs may file an appropriate application in the aforesaid appeal. M.H./M-33/K Application allowed.