1989 PLP 739 (CLC)

Farooq Naek for Plaintiffs. Nasim Farooqui and Amjad Hussain for Defendant No.l. Nemo for Defendant No.2. Mirza Yaqoob for Defendant No.3. Date of hearing: 12th February, 1989. This is an application for interim injunction.

2. The plaintiffs and their father are owners of plot of land bearing No.39‑A/2 Block‑6, P.E.C.H.S. Karachi together with building constructed thereon. The defendant No.l is the owner of adjacent plot of land bearing No.39‑A/1 Block‑6, PECHS. On the application of defendants Nos.l and 2 the defendant No.3 (Karachi Building Control Authority) approved a building plan and consequently allowed the defendants Nos. 1 and 2 to construct basement plus ground floor plus 10 upper floors only. The defendants Nos.l and 2 have illegally and unauthorisedly and in violation of the approved plan and the rules and bye‑laws of K . B. C . A . carried out and are carrying out unauthorised construction, details of which are shown in para. 5 clause (a) to (f) of the plaint. The above construction is dangerous for plaintiffs' life and property. The parties have filed affidavits and have also produced photographs.

3. On the application of the plaintiffs Official Assignee was appointed as Commissioner to inspect the site and submit his report. From the evidence on record, particularly the report of the Commissioner it is quite clear that the defendants Nos.l and 2 have not only completed upto 10th floor but they have also raised the building upto 16th floor. It is also clear that the projection corners and ends of each floor are only 34" away from the boundary wall between plots of plaintiffs and defendants Nos.l and 2 which clearly indicates that the defendants Nos. 1 and 2 have encroached upon the compulsory space which was to be left between these two plots.

4. Mr. Nasim Farooqui who appeared for the defendants contended that the mere fact that the defendants Nos. 1 and 2 had raised construction in violation of the approved plan will not entitle the plaintiffs to an injunction. They will have to show that such construction will infringe their right of easement or user of the property. In this connection reliance has been placed by Mr. Nasim Farooqi on A I R 1941 Nagpur 364; Cawashah Bomanji Parakh v. Prafulla Nath Rudra. This ruling is an authority for the proposition that in a suit for injunction restraining the building of a house it is incumbent on the plaintiff under section 56(k) of Specific Relief Act to show some special damage or injury. The mere fact that the Municipal Committee acted beyond its powers in granting sanction for construction of the house is not by itself sufficient to entitle the plaintiff to sue. In this ruling the D.B. of the Nagpur High Court had relied upon (1858) 121 RR 80 Ware v. Regents Canal Company, ILR 1 Bombay 132 Shephered v. Trustees of Port Bombay,ILR 22 Bombay 646 Vaman v. Municipality of Sholapur and 6 14LR 53 Ramdularay v. Chhindwara Municipality. The consensus of these rulings is that a plaintiff can succeed to obtain an interim injunction only if he proves that the threatened act would cause some special damage or injury to him which is not capable of being remedied. Mr. Nasim Farooqui has also placed reliance on an unreported judgment of D.B. of this Court dated 29‑12‑1988 in HCA No. 140/88. In this case the application for injunction was dismissed on the ground that the construction of the building was nearly completed upto three floors except the finishing and the 4th floor was according to the approved plan and the respondents were constructing it at their own risk subject to the decision of the suit.

5. After going through the above decisions it would appear that none of them applies to the present case. All these decisions relate to the construction of building in accordance with an approved plan while in the case before me there is clear violation of the approved plan. The approved plan as I have shown above is only for basement ground floor plus 10 floors while the construction in this case has been raised upto 16th floor i.e. six floors have been added without any approval of K . B. C . A . Moreover the projections of all the floors towards plaintiffs' building are encroaching upon the compulsory space to be left towards his building and the defendant No.2 have left only 34" distance between common compound wall and the construction. It was contended by Mr. Nasim Farooqui that the plaintiff had also converted his building into a commercial building and was therefore estopped from challenging defendants action. I do not agree with this contention. The plaintiff has neither obstructed the sunlight and breeze of the defendants nor endangered the safety of their building. Admittedly the plaintiffs' building is to the North of the defendants' building and immediately next to it and therefore such a huge edifice in the South of plaintiffs' building is bound to obstruct the sun in winter season and the breeze in summer season when these are most essential and there is also an imminent danger of its collapse on plaintiffs' building. No doubt the plaintiffs have not A specifically pleaded that their easement of light and air has been interfered with but by their contention that the above construction has caused grave harm, in security and irreparable loss to the life and property of the plaintiffs, such a situation can be inferred and is sufficient to make out a case of injury and damage which is not likely to be remedied.

6. Reliance has been placed in the case of Hawa Bai v . Haji Ahmed reported in 1987 C L C 558 where my learned brother Saleem Akhtar, J held that construction violating easement rights of light, air and privacy of plaintiff, intended to be raised by defendant without approval of plan by Building Control Authority and without consent of plaintiff could not be allowed even on the undertaking offered by defendant to the effect that in case proposed construction would violate easement rights of the plaintiff same would be demolished by defendant on his own costs. This Court while granting temporary injunction observed that 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. In the present case the defendants Nos. 1 and 2 had not obtained the approval of K . B. C . A . Mr. Nasim Farooqui has submitted that even before obtaining an approved plan and sanction construction can be raised and the same can be regularized later on under the relevant bye‑laws of K . B . C . A . Similar contention was raised in the ruling referred to above and my learned brother Mr. Justice Saleem Akhtar had repelled the same in the following words:‑ "In the present case the defendant No.l has not obtained the approval of the Building Control Authority. According to Mr. Umrani regulation No.23 provides that even before obtaining the approved plan and sanction construction can be raised. This is a wrong interpretation placed upon the provisions of Building Control Ordinance, 1979. A construction should be made after obtaining an approved plan from the Authority. Section 6 of Building Control Ordinance, 1979 is very clear and leaves no room for such argument as contended by Mr. Umrani. Further by obtaining an order from the Court and raising construction which has not been approved by the Authority, the defendant No.l wants to clothe his illegal acts under the sanction of the Court which cannot be permitted."

7. Under these circumstances I am satisfied that the plaintiff has made out a prima facie case that the construction of the building by the defendants Nos. 1 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. The balance of convenience is also in his favour. The defendants are B therefore restrained from raising any additional floor on their building pending the disposal of this suit. They are also restrained from carrying out the finishing work on the portions of the building projecting towards the plaintiff's plot and allegedly encroaching upon the compulsory open space until and unless they obtain prior approval for the same from Karachi Building Control Authority. Observations made in this case are of tentative nature and should not be taken prejudicial. A . A . / Y‑27/ K Application allowed.