2000 PLP 925 (CLC)

The appellants claim to be the owners of Plot No.43‑1/A, Block VI, P.E.C.H.S. Karachi, on which they are raising a housing project. For the said housing project they got approved a building plan from Karachi Building Control Authority (K.B.C.A.). .However, during construction, they made certain deviations from the approved plan and the staff of the K.B.C.A. interfered with the construction on the ground of deviation from the approved plan. One of the appellants, therefore, filed Civil Suit No. 1596 of 1998 for declaration and injunction. In that suit, the plaintiff/appellant filed an application for interim injunction and the K.B.C.A., the defendant in the suit, also filed some application. Both these applications were disposed of by the learned Single Judge through his order, dated 9‑4‑1999, which has begn called in question in these appeals.

2. The appellants have made the record of these appeals unusually voluminous by filing copies of a number of documents, but they did not care to file copies of the applications on which the impugned order was passed. However, from the impugned order, it can be gathered that the plaintiffs in the suit were seeking interim injunction t4 restrain the K.B.C.A. from interfering with their construction work, which the plaintiffs/appellants were carrying on in deviation of the approved plan, on the ground that the deviations were of such nature which could subsequently, be regularised. As has been mentioned in the impugned order, the other application was filed by K.4, C.A. seeking modification of the orders passed on 18‑2‑1998 and 23‑12‑1998, to prevent the plaintiffs/appellants from constructing any further floors beyond the 8th floor already constructed, because maximum area of cotrstruction permitted was already covered. The learned Single Judge refused to grant interim injunction and dismissed the application of the appellant/plaintiffs, while the application of K.B.C.A. was allowed.

3. The learned counsel for the parties have argued the matter before us and they have also submitted arguments in writing. The appellants seek interim injunctin against K.B.C.A. to continue with the deviations from the approved plan unhindered. The question at this stage is whether the appellants are entitled to equitable relief of in iunction to protect their act of deviation from the approved plan on the ground that such deviations can be regularised, on payment of penalty, after completion of the building. Not much has been said on this question but the counsel for the appellants has emphasised on the, questions which cannot be determined in these proceedings and at this stage, such as the type and nature of the deviations that can be regularised and the actual nature of the deviations made or to be made by the appellants. As, often one has lengthy arguments for a weak case, much time and energy has been consumed in showing as to what sort of deviations can be regularised under the law and in what circumstances. The learned counsel for the appellants has laboured in framing and answering the questions:‑‑ (i) Whether constructing more covered area than approved in the building plan is a violation of the 'sanctioned site development scheme', thus, contravening the prohibition contained in Regulation 16(2)(c)(i)? (ii) Whether section 12(6) of the Sindh Buildings Control Ordinance, 1979 empowers the K.B.C.A. to take any action if the builder deviates from the approved plan, especially where the said deviation is regularizable? (iii) Whether the K.B.C.A. under section 1'1(2) of the Sindh Buildings Control Ordinance, 1979 is empowered to demolish a building or take any other action against a building who deviates from the approved plan? (iv) Whether the K.B.C.A. under section 7‑A of the Sindh Buildings Control Ordinance, 1979 can fake any action of demolition or sealing of the building in which the approved plan has been violated? (v) Whether the construction of the appellants is fit to be regularized? (vi) Effect of ban on regularization.

5. Obviously, such questions are not to he determined at the stage of interim relief of injunction and at this stage the main question relevant is whether the appellants have a prima facie case for grant of interim injunction sought by them. They have admitted that the have made deviations from the approved plan.

6. It is contended on behalf of the appellants that their consultants 'advised them to deviate from the approved plan for the purpose of better planning and, therefore, they deviated, only internally, and such deviations are regularised by K.B.C.A. on payment of penalty. It is further contended that in many other cases K.B.C.A. has regularised such deviations and by not doing so in the case of the appellants, they are being subjected to discrimination. It is admitted that so far the appellants have not approached K.B.C.A. in the prescribed manner of regularisation of the deviations and they say that it will be done after completion of the building when completion plan will be submitted.

7. Regularisation, in such matters, is ex post facto condonation in the cases where the deviations are of such nature which K.B.C.A. could have approved as a part of the original plan under the Regulations, and one cannot deviate from the approved plan deliberately with a view to get it regularised afterwards on payment of penalty. The learned Single Judge has very rightly made the following observations in the impugned order, and we are inclined to agree with the view:‑‑ "The concept of regularisation of deviation from the approved plan is, I must admit, quite unpalatable to me. One might ask what is the purpose of making a rule or regulation which can be deviated from and such deviation can be compounded upon payment of penalty. Surely this would be contradiction in terms for rules are made to be obeyed and not to be deviated from. If such be the case then that would tantamount to allowing premium on deviation from the. rules and, thus, those who choose to obey the rules would suffer and would be at a disadvantage as compared to those who choose not to obey the rules.'

8. This is not a case of discrimination and it is like claim of a criminal for acquittal on the ground that all other criminals are not being punished. Admittedly, the appellants have made deviations from the approved plan and they are not entitled to the assistance of the Court in the shape of equitable relief of injunction to continue such deviations. If they wanted to construct a building of another shape, they could approach the K.B.C.A.‑with the new proposed building plan for approval.

9. The learned counsel‑for the K.B.C, A. contended that the appellants have already exhausted the permissible plot ratio and; therefore, they cannot add to the structure. The learned counsel for the appellants. dispute this fact. This dispute can also not be resolved at this stage. '

10. In any case, however, if there is any violation . of the building Regulations and the relevant law, K.B.C.A. has its role specified by the law itself.

11. In view of the abovementioned facts, we find the appeals absolutely without merits and accordingly they are dismissed, however, with no order as to costs.

12. Ad interim order passed earlier in these appeals stands vacated. Pending applications also stand disposed of accordingly. Q.M.H./M.A.K./M‑14/K Appeals dismissed.