1990 PLP 448 (CLC)

Bantwa M.C.H. Society v. Anis Ali Khan 1979 SCMR 77; Manzoor Hussain v. Bashir Ahmad 1980 SCMR 366 and State of Madhya Predesh v. Bhailal Bhai AIR 1964 SC 1006 ref. Saeed A. Shaikh for Petitioner. Hussain Adil Khatri and Abdul Hafeez Lakho, A: G. for Respondents. Date of hearing: 28th September, 1989. WAJIHUDDIN AHMED, J.‑‑Through this Misc. Application, bearing No.2393 of 1989, petitioner seeks restraint of the respondents from raising and/or completing unauthorized constructions on plot No. 89, Garden East, Karachi, in violation of approved building plan and/or building rules and regulations in the housing scheme of Garden East Quarters and from opening windows or apertures or balconies, overlooking the house/court‑yard/land/property of the petitioner and from occupying the building or making use of the same. Interim directions have also been sought for sealing of the premises.

2. The petition proceeds on pleas that the petitioner is the owner of Bungalow, on adjoining plot No. 90, where he is putting up, along with his family, for the last 30 years. Respondent No .4, who is a builder, recently purchased the above said plot bearing No. 89 and, on demolishing the old structures hitherto subsisting thereupon, has started constructions of his own thereon. Apprehending that the respondent No .4 proposed to construct a multi‑storeyed structure, a joint representation, dated 24‑10‑1988, was made to the Director‑General K.D.A. and Deputy Controller of Buildings, respondents Nos. 2 and 3, by all the neighbor, including the petitioner, seeking action to ensure that no building, in contravention of rules and regulations, was allowed to be raised. Correspondingly, the respondent No .4 , when contacted, made assurance that he would construct upon the plot in accordance with the Building Rules and Regulations and in consonance with the approved plan and would, in no way, interfere with or disturb the enjoyment of the adjoining properties.

3. However, the construction, when commenced, was found to be violative,inter alia, as the compulsary open spaces of 10' from the boundary walls of? adjoining plots and the 15' towards the road‑side had been encroached upon and whereas the approved building plan, pertained to one bungalow only, the respondent No. 4 embarked upon construction of six bungalows, instead, thereby practically, extending the covered area to the whole plot. Besides, windows and balconies, overlooking the petitioner's property impinged upon rights to light and air and privacy which, by prescription had matured over 30 years and also stood guaranteed under Article 14 of the Constitution. As a result and allegedly, petitioner's house has been rendered uninhabitable. The offending structures, it is maintained, also, contravene the housing scheme of Garden East Quarters area, imposing obligations, duties and burdens to be observed on user under section 40 of the Transfer of Property Act. On the foregoing plea, it is urged that there is a restriction on constructions, exceeding 1/4th of the plot area, on anything beyond ground plus one storey. and 10' and 15' open spaces, as already adverted to. Official respondents Nos.l to 3, it is contended, owe a duty under law to prevent violations of and to enforce Town Planning and Buildings Rules and Regulations as also to protect legal and Constitutional rights of citizens.

4. On the abovesaid complaint of the petitioner and neighbours, notice, dated 26‑2‑1989, was issued by the official respondents and served on the respondent No.4 to stop unauthorised constructions and to demolish whatever such constructions were already raised. Pursuance to such notice respondent No.4 filed Suit No.349/89 against the respondents 1 and 3 in the Court of the IVth Senior Civil Judge, Karachi (East), obtaining an ex parte order of status quo. Under cover of and in alleged abuse of such interim order the respondent No.4 continued the unauthorised constructions, day and night. Functionaries under the official respondents, allegedly, connived at such constructions. However, the application for injunction was heard and dismissed on 29‑5‑1989. Petitioner, on obtaining copy of such order, forwarded the same to the respondents Nos.2 and 3 and called upon them to perform their statutory duties, to stop unauthorised constructions and to demolish the offending structures but those respondents, again allegedly, failed to perform their statutory obligtions, inter alia, under section 7‑A of the Sind Building Control Ordinance, 1979. In these circumstances, the above petition was filed. Alongwith the petition the referred Misc. application was submitted.

5. A comprehensive reply has been submitted through the counter‑affidavit of the respondent No.4. In answer, it is said that the petitioner is only one of the co‑owners of plot No.90 to the extent of 1/4th share therein, that there are divisions of adjoining plots as well, none observing any limits of 1/4th covered area and no right of privacy subsists, as other structures adjoining that of the petitioner similarly overlook the petitioner's property. Respondent No.4 denies that he has not left compulsary open space of 10'. While he says that he is not raising six blocks of buildings, he concedes that he is raising six Bungalows, instead. It is denied that any offending windows or balconies have been opened or put up by the respondent No.4. It is, also, pointed out that there are multi?storeyed buildings in the area. As regards restrictions in leases it is said that the spetitioner has relied on the form of an agricultural lease and that even such leases are, generally violated and not adhered to as the majority of the lessees have not followed the same. This includes the petitioner as well. According to him, constructions having been taken in hand in January 1989, the structures are virtually complete. The petition is said to be mala fide and is claimed to be belated since another adjoining owner filed Suit No.414/89 on the Original side of this Court where Interim Orders are reserved and anticipating that such orders may go against the Objectors, this petition has, belatedly, been filed. Respondent No.4 further says that he has not violated any law, rules or regulations. He reports that he has since, lately filed a completion and regularisation plan on 29‑5‑1989. Article 14 of the Constitution and section 40 of the Transfer of Property Act are said to have no application.

6. A counter‑affidavit has been submitted also for the respondent No.3. It is admitted therein that the respondent No.4 is raising constructions in violation of the approved plan. It is also admitted that the petitioner and other neighbours raised objections and submitted representations. However, the respondent No.4 obtained ad interim orders in the referred suit, which were vacated on 29‑5‑1989. Undeterred respondent No.4 thereafter, filed another suit bearing No.855/89 in the Court of IVth Senior Civil Judge and obtained another stay on 30‑5‑1989, which is still operative. The official respondents, therefore, cannot undertake the demolition work of the offending structures.

7. During the course of proceedings in this petition orders on the injunction application in Suit No.414/89, aforesaid, have been announced and our learned brother S. Abdul Rehman, J., vide an order dated 17‑8‑1989, has been pleased to issue an interim injunction restraining the respondent No.4, here, from raising any further.constructions within 10' of the boundary wall of plot No.88/3, which is the subject‑matter of that suit. It has, however, been clarified, in the concluding part of such order, that the interim injunction granted there under shall not authorise the present respondent No.4 to raise any construction whatever in violation of the approved plan or the orders of the Building Control Authority, that the question of demolition of any existing construction in violation of the approved plan would be taken up at the time of the final disposal of the suit and that the interim injunction will not restrain the said respondent from raising construction on the remaining portion of the premises which is not within 10' of the boundary wall of plot No.88/3 aforesaid.

8. Mr. Hussain Adil Khatri, appearing for the respondent No.4, on an assumption that we would not be inclined to pass any orders of an interim nature in this petition which are inconsistent with the abovesaid orders in Suit No.414/89, voluntarily, made a statement that he would be willing to have the instant application disposed of on the following terms:‑ (1)Such constructions as are within 10' of the boundary wall of the petitioner's plot shall be demolished by the respondent NoA (2) The view from the balcony on the side of the petitioner's plot would be blocked by raising a wall. The windows, opening on such side, would be converted into ventilators so as to ensure the right of privacy claimed by the petitioner. (3) All the foregoing steps will be taken on a permanent basis. 9.? However, Mr. Sayeed A. Shaikh, appearing for the petitioner, was not agreeable to the disposal of the application on the aforesaid terms and insisted for an order on merits. As a result, this application was dealt with on merits.

10. It is an admitted position that construction activities under the Sind Building Control Ordinance of 1979 are controlled by and governed under an Authority, which, in so far as the city of Karachi is concerned, is known as the Karachi Building Control Authority. Buildings, as a rule, are to be raised on the basis of approved plans: Such plans, on principle, are to be in consonance with the relevant scheme, spreading over a specific area, framed by or under the successive directions of the Karachi Metropolitan Corporation, the Karachi Improvement Trust, the Karachi Development Authority and, finally, the Karachi Building Control Authority, as it is in such order that these powers have, from time to time, come to vest. Each such scheme has its peculiar features and constructions, re‑constructions and even modifications or alterations are to be on the basis of approved plans calculated to fit into the requirements of a particular A scheme or an area within which scheme operates or is enforced. Open spaces, covered areas, number of storeys and even nature or use of constructions may be duly regulated. Property holders within the perimeters of such schemes and even permanent residents come to have either vested rights or, at the very least, some interest in the observance of the necessary features of the relevant scheme. The local authority operating in such areas is obliged to ensure the observance and continuity of such schemes but always subject to law. Rights in such observance may not, in many cases, be rights stricto senso or strict juristic rights but could be rights or even interests of an inferior nature which, if not observed, could give rise to grievance for individuals. Where rights in strict legal sense are involved, remedy for transgression may be through Civil suits, or if necessary in Constitutional jurisdiction but where mere interests occasion a grievance the aggrieved party may not qualify to successfully maintain a suit. Statutory bodies, which are required by law to give effect to such rights or interests by enforcing compliance of their rules and regulations may, however, be appropriately sued in Constitutional jurisdiction by aggrieved persons since, for maintaining such Constitutional remedies, existence of rights stricto senso is not necessary. Similar view was expressed by the Supreme Court of Pakistan in Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223. and was consistently followed. It was lastly reiterated in this Court in Abdul Waheed Butt v. Mrs. Asma 1989 CLC 1936).

11. Another aspect of the matter is the obligation of an owner or occupier of land to raise constructions on the basis of an approved Building Plan. Such requirement can have multi‑dimensional implications. In the first place, the matter involves the builder and the Building Control Authority and in the other it may involve an adjoining owner/occupier of the property and its builder. Yet another dimension may extend to the builder, an adjoining owner/occupier of the property and the Building Control Authority. This is so as the various owners and occupiers of properties, who come to own or occupy the same, do so in the background and on the basis of existing schemes, restrictions, entitlements and other rights or interests involving properties. Powers of the Building Control Authority under statute are to be exercised keeping in view the paramount consideration of welfare of the community as envisaged and guaranteed under the statute and rules, whereunder it is created. In this case it is the Sind Building Control Ordinance, 1979, and the subordinate legislation subsisting thereunder. If the Authority fails in the performance of its obligations, ‑arising under law, such obligations are enforcible at the instance of those aggrieved by any such acts of B commission or omission. Likewise, properties are held on the basis of covenants, express or implied, ensuring rights between propety holders inter se on a broad spectrum.

12. Thus when constructions are raised without an approved Building Plan or in derogation of a plan, where approved, or in transgression of rights, interests or easements such as those of privacy or light or air, these all are remediable and enforcible matters though in different degrees and in different modes. The concept of burden of proof is also somewhat differently applicable in these matters. Thus, is relation to constructions involving lack of approved plans or transgressions of such plans or violations of the law, rules or regulations, issues are simple enough, as the same can be determined without involving any serious controversies as to facts and relief is not far to find. However, in relation to absolute, as distinguished from generic rights of an easementary nature, such as of light or air or those based on customs etc. such as of purdah or those guaranteed under the Constitution such as privacy of home disputes may involve complicated controversies of facts, except where such rights are themselves taken due care of under the rules regulations of the local Authority or the schemes relevant to an area. In the latter class of cases, observance of rules or adherence to the relevant schemes would ensure such rights, as well. Remedies, therefore, would be readily available. Similar views were expressed by one of us namely, Saleem Akhtar, J., in Muhammad Munir v. Ahmad Ally Memom PLD 1982 Kar. 425, Moosa Bhunji v. Hashwani PLD 1982 Kar. 940, R.G. Sehwani C.H. Society v. Haji Ahmad PLD 1983 Kar. 11 and Hawa Bai v. Haji Ahmad 1987 CLC 558 as, also, by our learned brother S. Abdur Rehman, J., in Yaqoob Ahmad v. Jason Construction Ltd. 1989 CLC

739. In the context of the referred rights or interests, it may also be observed here that where law empowers a local Authority, in terms of its statute, rules and regulations to compound a transgression or violation, on the part of a builder, such compositions, unless of trifling nature, if reflecting on the scheme as a whole or the rights of adjoining owners cannot be exercised except on due notice and hearing the effected parties. This has to be read as a requirement, arising from the rules of natural justice, implied in every statutory provisions or subordinate legislation emerging thereunder. Right to be heard becomes all the more poignant when an aggrieved person himself approaches a I local Authority for enforcement of the law or rules.

13. Examining this application in the above perspective the maximum that the respondent can, presently, claim is an approved plan in respect of one town house only. As regards the other five the case of the respondent No.4 is that a modified approved plan has been submitted. Contention of the petitioner is that apart from open spaces above referred respondents are also obliged to restrict the constructed area to one‑fourth of the plot. There are some disputes about these questions, which we do not wish to go into at this stage, and have no doubt that the scheme as a whole in the light of the rights of the property holders in the scheme will be adhered to and relevant persons would be heard before the official respondents in this case take to modifying the approved plan in relation to the plot in dispute. For the present, it is clear that the respondent No.4 has a limited approval and has raised constructions in violation of that approval. It is correct that he may have applied for an alteration or modification of the plan but then till such time as in due course of law such a modified or altered version of the plan comes to occupy the field that respondent cannot be permitted to raise constructions which have admitted potential of negating the rights of the petitioner.

14. On behalf of the respondent No.4 it is contended that the constructions are at an advanced stage and that they should be allowed to be completed as the petitioner has slept over his rights and cannot be allowed the equitable relief of grant of an injunction. It is further urged that in the event the constructions are held to be violative the respondent No.4 would pull the same down. Reliance is placed on Bantwa M.C.H. Society v. Anis Ali Khan 1979 SCMR 77, Manzoor Hussain v. Bashir Ahmad 1980 SCMR 366 and State of Madhya Pradesh v. Bhailal Bhai AIR 1964 SC 1006. All these citations are distinguishable. In Bantwa Memon C.H. Society the dispute related to land of which the society was in possession and the plaintiff was not. Hence relief was disallowed. Likewise, in Re: Manzoor Hussain the dispute was between co‑owners of a property. The Madhya Pradesh case pertained to the writ of mandamus, where it was opined that such writ could not be issued in cases of inordinate delay. Here, for one thing, we are not considering an order in the nature of mandamus but one relative to prohibition and that, too, at an interlocutory level and for another no delay let alone an inordinate one is involved. The petitioner is shown to have approached the Building Control Authority at the earliest, even before the constructions were taken up. That approach bore no fruit because the respondent No.4, on commencing contravening constructions in January 1989, was noticed to demolish per notice dated 26‑‑2‑1989, chose to file a civil suit and obtained an order of injunction against the Building Control Authority. These proceedings remained pending for some time when, finally, the injunction was vacated on 29‑5‑1989. Respondent No.4 filed the completion and regularisation plan the same day and, the next day, on filing a fresh suit, obtained, from the same Court, another adinterim order of injunction against the official respondents, which remains operative to this day. Petitioner claiming implementation of notice dated 26‑2‑1989 riled the present petition on 29‑8‑1989. Thus, there is no delay. Offending constructions have been raised on obtaining the protective orders of Court and everything, apparently, has proceeded in such hurry that the respondent No. 4, in such a short time, as up to 29‑5‑1989, came up with a completion plan. The successive orders of the Civil Court have held the field so persistently that even we, unless another jurisdiction is invoked, which we are not inclined to invoke, cannot recall the same. However, while not choosing to interfere in that jurisdiction, we would express a desire that the pending application, whereupon stay operates shall be disposed of within one month. Copy of this order shall be sent to the learned Judge and also placed before the Hon'ble Chief Justice for consideration of administrative implications.

15. 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 continuty, 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 sitution appears to be in sight.

16. It is for these reasons, that we had by a short order passed on 28‑9‑1989 granted an interim injunction restraining constructions as a whole on the disputed plot. The foregoing are our reasons for such order. ' AA./S‑509/K ? Petition allowed.