1989 PLP 2173 (CLC)

This application under Order XXXIX, rule 1, C.P.C. has been filed by Akhtar Hussain and others, residents of Block

3. PECHS, Karachi, praying for interim injunction restraining the defendant No.l, their agent, attorneys, representatives, workers, labourers or any of the persons acting through them from raising any construction and or doing as other work in respect of construction on the plot No.162‑D, Block 3, PECHS, Karachi, till disposal of the suit. Plaintiffs are owners and co‑owners of plots bearing Nos.161‑D, 161‑C, 162‑B and 162‑E, all situated in Block 3, PECHS, Karachi. Defendant No.l are said to be a partnership firm carrying on construction business. Defendant No.2 are Karachi Building Control Authority, (herin after called "the Authority") a statutory body, established under the Sind Buildings Control Ordinance, 1979. It is averred that defendant No.l without approval of any building plan have been carrying an illegal construction of a multi‑storeyed building on their plot of land in violation of Regulations of the Authority relating to residential plots of 2000 sq. yards as to covered area, compulsory space in between main road adjacent plot and conversion of residential land into a four‑storeyed commercial complex consisting of 24 flats besides shops and godowns. The plaintiffs, who are said to be owners and co‑owners of adjacent plots allege that the unauthorized construction was started by the defendant No.l in the third week of February, 1989. After inquiries were made by the plaintiffs from the Authority they came to know from them vide annexure "H" that "no building plan for the said construction has been approved by the KBCA". It is averred that being neighbours they are adversely affected by this unauthorized construction. It is apprehended by them that their easement right i.e. light, air and as well as right of privacy, will be infringed and their civic amenities such as parking space, water and electricity will also be affected adversely. In reply, the defendant No.l have alleged that the plaintiffs themselves have violated conditions as to compulsory open space, covered area, etc. Other allegations are also denied. It is, however, contended by them that the predecessor‑in‑title of the defendant No.l possessed legally approved plan of ground plus 3 storeys comprising of 32 flats which plan naturally stood transferred to the defendant No.l alongwith the plot of land. According to them, on 5‑1‑1988, the Authority realized the sanctioning fee and additional floor charges of 2nd floor from them and on 27‑3‑1988, the Authority also realized additional floor charges for the 3rd floor. Hence the ground plus 2 storeyed‑plan stood approved on 5‑3‑1988 and 3rd floor plan on 27‑5‑1988, after expiry of 60 days as per Regulation 13 (3) of the Karachi Building and Town Planning Regulations, 1979. Copies of receipt, plan, sanctioning fee, etc., were filed by them being Annexures "D" to "D‑4". . Since it appeared to the Court that the defendant No.l had been deliberately avoiding service of notice of ad interim injunction, on 21‑3‑1989, order of attachment under Order 39, rules 3 and 4 C.P.C. was made and the official Assignee was also appointed as Commissioner to inspect the site and submit his report with regard to stage of construction and to ascertain whether the same was being carried out in violation of the order of injunction order and if the same was without or in contravention of approved plan. As per the report the nature of construction shows that six flats are under construction, three of which are facing 161‑D and other three facing 163‑D. While giving details of the work, the Commissioner reports that there is no plastering on the external side and no doors and windows have been fitted. A sketch has also been enclosed . by him alongwith the report. It is an admitted position that when construction had started there was neither any approved plan of the building nor any No Objection Certificate, as required under section 6 of the Sind Building Control Ordinance, 1979. Mr. Z.U. Ahmed, learned counsel for defendant No.l, however, contended that once a plan of the 'building is submitted to the Authority, it must either be approved or rejected within a period of sixty days otherwise it stands approved in terms of Regulation 13 (3) of the Karachi Building and Town Planning Regulation, 1979. In support of his contention he placed reliance upon Muhammad Shams Erum Usman v. Karachi Building Control Authority reported in 1989 C L C 193, wherein a Division Bench judgment of this Court had held as follows:‑ "It must, therefore, follow that after the expiry of 60 days from the date of submission of the plan the same shall be deemed to have been approved to the extent to which it does not contravene any of the provisions of the Regulations or the Master Plan or Site Development Scheme. The respondents are entitled to take action against the petitioner on the ground that the proposed construction is in violation of the Regulation of the Master Plan or Site Development Scheme but they cannot take action against the petitioner on the ground that they had commenced the construction of the building without approval." The above cited case does not relate to violation of easement right of a person but calls in question an impugned notice requiring the petitioner to remove the construction. In any case. it is evident that a plan which stands approved after the said lapse of 60 days does not purport to regularize violation of regulations of Master Plan or site development scheme, and therefore it does not stand on the same footing as a duly considered approved plan. However, the context of present case it may be stated that there is nothing in law which says that once a plan for construction has been approved, the easement rights of a person are extinguished alongwith it. Neither the Sind Building Control Ordinance, 1979, nor any regulation made there under envisage a scheme usurping he rights of easement or of privacy of a person under the garb of approved plan or no objection letter. These easement rights are not subservient to the Building Control Laws and exist independently irrespective of the approved plan or not. However, presence of an approved plan manifestly would create a presumption that regulations made by the Authority have not been violated and that the Authority had duly considered and applied its mind inter alia to the rights of easement and of privacy of the persons living in the neighbourhood Mr. Qadir H. Sayeed, learned counsel for the plaintiff, categorically made a statement which has not been rebutted by the learned counsel for the defendant that no objection or sanction letter accompanying and approved plan invariably contains a clause stating "that the right of easement is a matter between the concerned parties with which the Authority has no concern." That being the position, a plaintiff aggrieved by or apprehensive of violation of rights of easement and of privacy on account of unauthorized construction by the defendant will be burdened to a lesser degree in establishing a prima facie case for interim injunction than a defendant who has been raising construction on the basis of a duly approved plan. Next, it is contended by the learned counsel for the defendant No.l that the plan of the building submitted by their predecessors also stand transferred to the defendant No.l alongwith the plot and since it has neither been approved nor rejected, by afflux of time i.e. after expiry of 60 days, it stands approved as aforesaid. Learned counsel was, however, unable to show how a plan so submitted by a former owner stands transferred to the new owner under the terms of Building Control Laws or any other law for the time being in force. In support of his case, Mr. Qadir Sayeed, learned counsel for the plaintiff firstly relied upon Hawa Bai v. Haji Ahmed and another 1987 C L C 558, in which my learned brother Saleem Akhtar, J. had held, that if the proposed construction (unauthorised) is raised on the first floor, it will affect the plaintiffs right of light, air and privacy and granted temporary injunction to the plaintiff. In that case it was urged that the learned Judge did not accept the undertaking offered by the defendant and held that" 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. Next learned counsel for the plaintiff referred to Yaqoob Ahmed and 4 others v. Jason Construction (Pvt.) Ltd. and others 1989 C L C 739 Karachi in which my learned brother Abdur Rehman, J. while granting interim injunction to the plaintiff held as follows:‑‑ "I am satisfied that the plaintiff has made out a prima facie case and that the construction of the building by the defendants Nos.l and 2 to such a height and in such a manner, which is clearly in violation of the approved plan, is bound to cause injury and damage to him and his property which is irreparable:" Mr. Z.U. Ahmed, learned counsel for the defendant No.l, however, placed reliance upon Naseer Ahmed v. Hafiz Mohammad Ahmed and 17 others, reported in 1984 C L C 340 in which a Division Bench of this Court had held that "mere assertion of a supposed right is not sufficient for obtaining prohibitive order. The plaintiff have to establish by evidence they have acquired any rights of easements and prove that their privacy is or will be violated:" In a recent judgment reported in NLR 1989 UC 325, my learned brother Haider Ali Pirzada, J. following 1984 C L C 340 held as under:‑ "The learned counsel for the plaintiff urged two more grounds, one of infringement of right of easement‑ of light and air and another violation of privacy. These have to be established by evidence that they have acquired any rights of easement. Mere assertion of a supposed right is not sufficient for obtaining temporary injunction. The plaintiff have to prove that their privacy is or will be violated." The defendant No.l have not denied that the plaintiffs have been residing on the Western, West Southern, Southern and Northern plots which surround their plot. In reply to the plaintiffs' allegation that the privacy of plaintiffs families will be violated inasmuch as it will be impossible for their ladies to move into their own lawns, it is contended by the defendant No.1 that none of the families in the area are purdah‑observing are quite modern and even go to club. In other words, the right of privacy does not exist for modern and club‑going ladies. This contention is patently erroneous, as the right of privacy exists in the most modern and even Permissive societies of the West and is the very basis of a decent living. It would not be out of place to mention that Article 14 (1) of The Constitution of the Islamic Republic of Pakistan envisages that "The dignity of man and subject to law, the privacy of home, shall be inviolable". According to the Commissioner's report, from the nature of construction, six flats on ground, Ist floor and second floor, appear to be under construction, three of which, face Bungalow No.161‑D, whereas other three face Bungalow No.163‑D. Except RCC structure work and some shuttering work of the stair‑case and some masonary work, most of the construction work is incomplete. No work has been carried out on the roof of the second floor. This report as well as the sketch enclosed thereto has not been questioned by the defendant No.l. The sketch clearly shows that the plaintiffs are adjacent owners co‑owners of plots to the proposed ground plus three‑storeyed building. Learned counsel for the plaintiff urged before me that admittedly the defendant No.l have been covering an area more than one‑third of the plot, raising construction of a ground plus three‑storeyed building, not leaving compulsory space either from the main road or from boundaries of adjacent owners. These restrictions imposed by the defendant No.2 are in the public interest for proper town planning scheme and to safeguard the easement rights, etc., of adjacent owners and persons living in the vicinity. The plaintiffs have been able to show that construction has been carried out by the defendant in violation of restrictions imposed by the authorities concerned and without approved plan. Presently the building is ground plus two storeys and it is proposed to go upto three storeys. Whether or not the plaintiff's right of easement and of privacy are being violated or not can only be finally established by evidence of the parties but for the purpose of deciding this application, the plaintiff has been able to make out a prima facie case for injunction. I accordingly grant temporary injunction against the defendant No.l as prayed. Application stands disposed of. A.A./A‑602/K???????????????????????????????????????????????????????????? ??????????? Injunction granted.