1989 PLP 219 (MLD)

This second appeal calls in question the judgment and decree passed by 26th of July, 1981, whereby he set aside the judgment and decree of the learned Civil Judge, 1st Class, Lahore, dated 24th of May, 1980.

2. Briefly stated the facts giving rise to this appeal are that on 12‑3‑1971 a suit for permanent injunction was filed by the appellant against the respondent. In the plaint it was alleged that the plaintiff/appellant was the owner of Cinema house situate at 11‑Abbot Road, Lahore and in order to raise some further construction, the appellant applied for sanction of the plan but no order was passed on the application nor was the appellant informed about its fate. According to the case of the appellant on the expiry of period of two months, the plan submitted by it stood sanctioned by operation of law and he after informing the respondent on 18th of September, 1970 proceeded to make the construction. It was thereafter that the respondent threatened to demolish the construction which obliged the appellant to file the suit. In the written statement riled by the respondent it was not denied that a plan for further construction had been submitted. It was, however, alleged that the plan submitted by the plaintiff was rejected and the plaintiff/appellant had even without waiting for the sanction started the construction which was illegal. On the pleadings of the parties, th e trial Court had framed the following issues:‑‑ (1) Whether the site plan of the plaintiffs stands sanctioned? OPD (2) Whether the defendant is not entitled to demolish the construction in dispute? OPD (3) Whether the suit is not maintainable? OPD (4) Whether the Court has no jurisdiction? OPD (5) Relief. In support of its claim the appellant examined its own Manager Ijaz Malik as P.W. 1, Sh. Akhtar Ali, Managing Director of the appellant Company " P.W.2. The appellant also produced in evidence, copy of the letter, dated 18th of September, 1970 as Exh. P‑1, notice, dated 26th of October, 1970, Exh. P.2 and the letter of the defendant of 20th of February, 1971 as Exh. P.3, copy of the resolution authorising P.W.2 to file the suit was produced as Exh. P.4. A copy of the plan also appears to have been produced as Exh. P.4. In rebuttal the respondent examined only one witness namely Shamshad Hussain Head Clerk, who was at the relevant time, Building Inspector concerned. He also produced in his statement his report, Exh. D. 1 copy of the notice under section 78(2) of the Municipal Administration, 1960 as Exh. D.2 his report on the plan Exh. D.3 and another report dated 21st of October, 1970 as Exh. D.4. A notice issued under section 115(4) of the Ordinance was tendered in evidence by him as Exh. P.5.

3. The trial Court by means of its judgment and decree dated 24‑5‑1980 came to the conclusion that as no order was passed by the respondent within the statutory period of 60 days as required by section 77 of the Municipal Administration Ordinance, 1960, the plan submitted by the appellant was deemed, under the law, to have been sanctioned. It, therefore, decreed the suit on 24th of May, 1980. The appeal filed by the respondent, however, succeeded before the learned Additional District Judge, who took the view that the construction in dispute had been made by the appellant before the expiry of period of 60 days from the submission of building plan and was, therefore, unauthorised. In view of this finding he proceeded to dismiss the suit filed by the appellant.

4. There is no dispute and it is admitted between the parties that the appellant had filed a plan for the purpose of sanction on 11th of June, 1970 and no order was passed thereon for a period of 00 days. According to the case of the respondent, the plan was rejected on 20th of February, 1971 i.e. much beyond the expiry of period of 60 days. On account of the failure of the respondent to pass an order within the prescribed period, the plan was deemed to have been sanctioned under subsection 3 of section 77 of the Municipal Administration Ordinance, 1960, to the extent it did not violate the building bye‑laws Master Plan or the Site Development Scheme.

5. The counsel for the respondent, however, submits that the plan submitted by the appellant was not a building plan but a site plan and in support thereof has drawn my attention to the averments made in the plaint itself and the issues framed by the learned trial Court. However, I find that in the written statement, the respondent had admitted that the appellant submitted the plan for further construction. Even otherwise it is admitted that the construction in dispute was in the nature of additional construction and as such it could be said that the plan submitted, was for approval of the site and not construction. The plaint, if read as a whole, leads to the conclusion that the plan though described as a site plan in the plaint, was submitted in order to obtain sanction for raising additional construction.

6. The learned counsel for the appellant in support of the appeal has contended that even if it be assumed that the construction was started immediately after the submission of the plan, without waiting for the period of 60 days, at the time of issuance of notice for demolition, the stipulated period had already expired and the plan stood sanctioned, therefore, the respondent could not threaten to demolish the construction. This argument of the learned counsel is well‑founded. Section 78 of the Municipal Administration Ordinance, vests a discretion in the respondent to demolish or condone or compound any violation of a building plan. Therefore, if construction when made was without proper sanction, by the subsequent sanction the violations will be taken to have been condoned. It would be highly anomalous, if even after the sanction of the plan, the respondent is permitted to demolish the building covered by such a plan on the ground that it was unauthorised. Such an action can only be taken if construction was violative of either building bye‑laws, Master Plan or the Site Development Scheme. However, in none of the notices relied upon by the respondent there was any averment that the construction raised by the appellant violated either any Master Plan, Site Development Scheme or building bye‑laws. This being the position the notices issued by the respondent were without any lawful authority. It is, however, clarified that under section 77(3) of the Municipal Administration Ordinance, 1960, by operation of law on the expiry of period of 60 days, from the submission of the plan the same stands sanctioned only to the extent it does not violate either building bye‑laws, Site Development Scheme or Master Plan. With these observations, this appeal is accepted and the suit is decreed to the extent that the construction raised by the appellant, if not violative of the building bye‑laws, Site Development Scheme or Master Plan, shall not be demolished by the respondent or interfered with in any manner whatsoever. No order as to costs. H.B.T./M‑1044/L Appeal accepted.