1993 MLD 1276 (PLP)

(a) Privacy of the neighbours shall be maintained. (b) In case of any dispute (on that account) Karachi Building Control Authority shall not be a party. In other words, this regularisation is subject to the condition that privacy of the neighbours shall not be adversely affected and if it is affected, then in view of the violation of condition precedent, the regularisation order stands automatically cancelled and Karachi Building Control Authority ceases to be a party to such regularisation. Now, the very basis of the suit is the grievance of the respondent that her right of privacy and her right to receive light and air from the direction of the plots of the Appellants are adversely affected. As such, it is still to be seen whether the regularisation of the violation of building rules is still valid. And this shall be done at the conclusion of the trial and till then the Appellants must remain restrained from raising the structure in violation of the building rules.

5. The last para of these regularisation orders dated 19‑12‑1989 and 16‑5‑1990, runs as follows:‑‑ "This regularisation/completion plan is being issued as per orders of High Court in H.C.A. No.159 of 1989 dated 20‑9‑1989:"

6. We have minutely gone through the file of H.CA. No.159 of 1989 and we find that no order was passed or could be passed by this Court on 20‑9‑1989 for the simple reason that H.CA. No.159 of 1989 (or even H.CA. No.158 of 1989) never came up before the Court on this date. However, an order of this Court which could have any relevancy in this context was passed on 12‑9‑1989. On this date C.MA. No.8W of 1989 filed by the appellants was heard. This was an application under Order 39, Rules 1 and 2 in which the appellants sought a temporary injunction till the decision of the application restraining the respondents (including Karachi Building Control Authority which is impleaded as Respondent No.3 in H.CA. No.159 of 1989 although it is not impleaded in H.CA. No.158 of 1989) from demolishing the construction illegally raised by the appellants in violation of the building rules. The ground pleaded by the appellants in para. 7 of their supporting affidavit was that the illegal B construction could be condoned by Karachi Building Control Authority and they were trying to get it condoned. It is pertinent to note here that the Karachi Building Control Authority itself had given a notice to the appellants to demolish the illegally raised structure and had threatened to demolish the same by its own staff if the appellants failed to comply with the notice. It was much after this that so‑called regularisation orders were passed by Karachi Building Control Authority which then withdrew the said notice and since then is supporting the appellants). This application was dismissed by the Court on 12‑9‑1989 although it was also observed by the Court that Karachi Building Control Authority was not thereby precluded from passing any order on the application of the appellants for the regularisation of illegal construction raised by them in violation of the building bye‑laws etc. Now, this order of 12‑9‑1989 does not envisage the passing of the Regularisation order. Last para of the order (quoted above) is extremely misleading and gives an impression that the Regularisation orders were passed by the Karachi Building Control Authority on some direction of this Court which is a totally incorrect insinuation.

7. In short, we are of the view that the deviation in the building plan with respect to the construction on Plots Nos.E‑82 and E‑82/1 being admittedly in violation of building bye‑laws of Karachi Building Control Authority, the appellants cannot be suffered to complete it merely on their promise or undertaking that they would demolish it if the suit is decided against them. This very question was considered by this Court. in the case of Mst. Hawa Bai v. Haji Ahmed 1987 CLC 558' and it was observed as follows:‑‑‑ "In the facts and circumstances of the case prima facie it is clearly established that if the proposed construction is raised on the first floor it will affect the plaintiffs right of light, air and privacy. The learned counsel for the defendant mainly relying on the undertaking given by the defendant No.1 referred to two authorities viz. 1981 CLC 414 and 1981 CLC 513 in which according to the learned counsel on undertaking being given permission to raise the disputed construction was allowed on terms. In my view the facts in those cases were completely different because there the defendants were raising construction according to the approved plan. In both the cases the plan had been approved but the plaintiffs were objecting that it will infringe right of privacy, light and air. In my view in such disputes, if on such undertaking construction is allowed to be raised which is not according to the approved plan, then it is bound to create a very anomalous situation. It will amount to bypassing the mandatory requirement of law of obtaining approved plan before raising construction and clothe it with legitimacy under the order of the Court. Such sanctions though in the nature of a temporary order prolong for an indefinite period and experience has shown that it leads to serious complications and legal ramifications and often third party's vested interest is created making it difficult to demolish the construction so raised. To lay down a rule to allow construction particularly unauthorised, on such undertaking as in the present case is likely to encourage raising of the planned structures and would amount to creating dangerous precedent which may ultimately result in legal complications and multiplicity of litigation in which innocent third parties will be more affected if the construction has been raised on commercial basis. Such constructions are not beneficial to the parties and obstruct planned development of a locality. Therefore, the undertaking offered by the defendant is not acceptable particularly as the plaintiff has opposed it." We may also refer with profit to another judgment of this Court in the case of Suleman Mala v. Karachi Building Control Authority and 3 others 1990 CLC 448 in which the following observations were made on this very point: "We would, also, not allow the respondent to complete the structures on an undertaking to demolish the same on failure in legal proceedings because that will amount to permitting premium on wrong‑doing. Further, we cannot fail to observe that a tendency has, lately, developed in taking the law for granted and in violating it in the expectations that, on passage of time, matters would ease and condonation would be allowed or the adverse parties, over an indefinite period spreading over a number of years, would lose interest and the violations would be allowed the stamp of continuity, if not for anything, but default on the part of all concerned. This is a very sad state of affairs and the entire society appears to have been stricken with it. Law, thus, is observed only in its breach. Therefore, unless strict observance is enforced no respite from the present day situation appears to be in sight." We are in full agreement with the observations made in the abovementioned' two judgments and reject as misleading the undertaking of learned counsel of the appellants that the temporary injunction may be vacated and the appellants be permitted to complete the construction, which is admittedly in violation of p the building bye‑laws, on their undertaking that they would demolish it in case the suit is decreed against them. Similarly, in the case of Vazir Ali v. Hannif 1990 CLC 1842 it was held that when a construction is in violation of Rules and Regulations, or. without proper approval. no presumption arises that such act was not likely to infringe the rights of the neighbours. So, such construction should not be allowed to continue during the pendency of a suit filed by the neighbours claiming violation of their rights of easements as to privacy and light and air. Morever, the regularisation of unauthorised and illegal construction does not extinguish the rights of easements of the neighbours who can maintain suit on the basis of these rights as held in the case of Akhtar Hamid Ghori v. M/s. Saima Estate Developers 1989 CLC 2173

7. After taking into account the facts of the case and the above mentioned reported judgments we agree with the learned Single Judge that all requisite conditions for the grant of temporary injunction exist in the present case. Respondent Mrs. Nawab Begum has a good prima facie case, the balance of convenience lies in her favour and, since deprivation of privacy and light and E air which she would suffer if the injunction is not granted, she would also suffer irreparable loss on that account. We would, therefore, uphold the impugned order and dismiss both these appeals with costs. H.B.T./M‑1743/K Appeals dismissed.