1989 PLP 1966 (MLD)

He has submitted a report. According to the report the open space between the boundary wall and the main construction of the building of defendant is 4.94 metres. The open space between the boundary wall and the main construction of the plaintiff is 3.66 metres. It would be appropriate at this stage to notice the relevant provisions of the Sind Building Control Ordinance, 1979 enjoining upon a person to construct a house according to the approved plan. Section 6 lays down that no building shall be constructed before the Authority has, in the prescribed manner, approved the plan of such building and granted no objection certificate for the construction thereof on payment of such fee as may be prescribed. Section 7 provides for preparation of plans by and under the supervision of such person or persons referred to in subsection (1) of Section 8 as may be prescribed. Section 7-A confers power on the Authority to demolish construction which is in violation of the provisions of Subsection (1) of Section 6 of the Ordinance. The question for consideration is whether the aforesaid provisions of the Ordinance and the Karachi Building and Town Planning Regulations have been designed for the protection of rights and interest of adjoining owners. The following two passages from Halsbury's Laws of England, Fourth Edition, Volume 45 throw light on the question in issue and may profitably be extracted. Para. 1282 reads as under:- "Matters to be considered. Whether or not an individual can bring a common law action in respect of a breach of a duty imposed by a statute depends upon whether the intention of the statute, considered as a whole and in the circumstances in which it was made and to which it relates, was to impose a duty enforceable by an aggrieved individual. No universal rule can be formulated which will answer the question whether in any given case an individual can sue. In answering the question it is, however, relevant to consider whether the statute was intended to protect a limited class of persons or the public as a whole, whether the damage suffered by the person seeking to sue was of the kind which the statute was intended to prevent, whether a special statutory remedy by way of penalty or otherwise is prescribed for breach of the statute, the nature of the obligation imposed, and the general purview and intendment of the statute. Pat 1283 reads as follows:

"Class of persons protected. An individual may sue for a breach of statutory duty only if the statute imposes a duty enforceable by a party aggrieved. The answer to the question whether the statute imposes a duty so enforceable does not necessarily depend upon whether the statute was intended to protect a limited class of persons or the public as a whole. Nevertheless it is of importance to determine what was the intention of the statute in this respect because, if the statute on its true construction is intended to protect a particular class, it is some indication that members of that class are intended to have a right of action (for example in the case of statutes for the protection of factory workers, mine workers, building workers, merchant seamen, dock labourers and shipyard workers, or intended for the protection of the public when exposed to certain dangers). On the other hand if the statute is intended to protect the public as a whole, it will not usually be construed as giving a right of action to individual members of a particular class. In any case in which a class of individuals has a common law right of action in respect of the breach of a duty imposed by a statute, a plaintiff of succeed must show that he is within the class of persons which is intended to be protected and to which the duty is therefore owed." From the aforesaid passages broadly two important principles emerge is though a statute may impose a public duty it may at the same time impose a duty enforceable by an aggrieved individual in addition to the public policy, (ii) that plaintiffs to succeed must show that they are within the class of persons which is intended to be protected by the statute. There can be no controversy that the Ordinance and the Regulations impose a public duty. The question for consideration is whether they also impose in addition a duty enforceable by adjoining owners who are aggrieved by the construction of a neighbour in violation of the Regulations and the plan I would now proceed to examine the various authorities cited at the Bar tinder different Municipal Acts. In Hirendra Nath Datta v. Corporation of Calcultta and others AIR 1941 Calcutta 386, Edgley, J. made the following observation:- " .It must be assumed that in framing the statutory rules relating to the space to be left between buildings and their height, the legislature had it view the general convenience of all residents in the municipal area in order to ensure proper ventilation and sanitation for the rate payers, and possibly adequate means of preventing the spread of fires from one building to another. In this view of the matter, it is impossible to say that the petitioner would not be affected by any breach of the existing rules, and, in my view, he has a clear right to insist that these rules should be strictly observed by the corporation in reference to any plans for the extension of the Tagore building ....: Similar view was taken by Ameer Ali, J. in re Sm. Lakshmimoni Dassi AIR 1941 Calcutta

391. His Lordship observed thus:-- " .The question is whether, where the provision is primarily in favour of the general public but in the nature of things the breach of it must injure the specific individual to quite a different degree, such a right can be assumed in the specific individual. In my opinion, though again depending on the facts of each case, yes. In this case, the position of the adjacent owner is stronger, for, in my opinion No.21 has been injured by the breach of conditions specifically designed to prevent injury to adjacent owners. Rule 32 is especially directed to the relative positions, vis-a-vis each other, of No. 21 and No.13. It is the duty of the Corporation to see that Nos. 21 and 13 do not steal a march on each other. It is their duty, to the extent of the bye-laws, to see that one does not interfere with the health or amenities of the other: His Lordship further observed:- .I have no hesitation in holding that, as regards R.32, the case rests not merely upon the fact that general duties have caused a special injury, but that provisions and restrictions especially designed for the benefit of the adjacent owner, have been disregarded so as to cause the adjacent owner that damage which it was intended to prevent .. In Nandalal Ladia and another v. Provudayal Tikriwalla and another AIR1952 Calcutta 74 a Division Bench did not take any different view. Considerable stress was laid by Mr. Nisarally on paragraph 6 wherein their Lordships observed thus:- "(6) Under Ss. 54 & 55, Specific Relief Act, the plaintiffs may pray for a perpetual or mandatory injunction to prevent the breach of an obligation existing in favour of the plaintiffs. In the present case there was no obligation contractual or otherwise on the part of the plaintiffs towards the defendant, which required that the defendant should construct on his own land in accordance with the Municipal Rules and Regulations. The plaintiffs therefore have no right to pray either for a mandatory injunction or a perpetual injunction merely on the ground that the proposed construction on the defendant's land may be in breach of Municipal Rules & By-laws." A superficial reading of this passage is likely to this view that no obligation has been created in favour of a neighbour when the other neighbour makes construction in violation of Rules/regulation will not give a cause of action. Only if injury to the plaintiffs, is established on account of the violation of the rules then he would have a cause of action. In that case their Lordships came to the conclusion in para. 10 that by the defendant's construction the sanitations of the plaintiff's building was not likely to be affected. Similar view was also expressed by another Bench in the case of Sm. Parul Bala Roy v. Srinibash Chowmal and others AIR 1952 Calcutta

364. Their Lordships in unequivocal terms said that if the plaintiffs can bring their case within the ambit of para, 3 of Section 54 of Specific Relief Act then they would be entitled to ask for injunction. In the case of Krishna Kali Mallik v. Babulal Shaw and others AIR 1965 Calcutta 148 A.N. Ray, J. took also a similar view. In the case of Cawashah Bomanji Parakh v. Prafullah Nath Rudra AIR 1941 Nagpur 364 a Division Bench observed as under:- "As the appellants asked for an injunction restraining the building of the house it was incumbent on them under section 56(k), Specific Relief Act, to show that they had some personal interest in the matter. The mere fact that the Civil Station Sub-Committee acted beyond its powers in granting the sanction to the building would not by itself be sufficient to entitle the plaintiff's to sue. In (1858) 121 R.R. 80 it was pointed out that the mere fact that there was a violation of an Act of Parliament could not give a right to an injunction unless it was proved that the violation of law had occasioned damage or was likely to produce damage which could not otherwise be redressed. In I Bombay 132, Green J., in his observations at p.142 made it clear that it is only when an act of any corporation or public company which is in excess of their powers is calculated to be injurious to the rights of the property of an individual that he would have the right to protection of the Court by injunction. In 22 Bombay 646, an individual rate payer was held entitled to an injunction against the company in respect of the application of its funds for the reason that the individual ratepayer had an interest in the funds. That the cause of action arises from an injury resulting to the plaintiff and not merely the capricious or perverse exercise of discretion by a corporation was pointed out also in 6 NLR 53 at p.64. It is obvious therefore that the appellants' case could succeed only on proof of some special damage or injury occasioned to them by reason of the permission granted by the Civil Station Sub-Committee, assuming that it was contrary to the bye laws and therefore ultra vires." Law is thus well-settled that mere violation of Building Regulations or plan is not actionable per se unless an injury, real or apprehended, is established by the persons in whose interest and for whose protection the regulations or rules are framed. The Ordinance and the Building Regulations create an obligation in favour of plaintiffs if they prove such injuries which would be determined according to the facts and circumstances of each case. It is not disputed that the original plan was for ground floor plus one floor. The defendants filed another application wherein the defendants sought approval of the K.B.C.A. for construction of a building of ground plus three floors. It is the case of the defendants that they were directed to pay fees for the additional floors which they did on 23-4-1988. In the case of P. Mahadeva lyer and others v. Municipal Council, Rumbakonam AIR 1927 Madras 241 it was held as under:-- " .if within the period of six weeks the Municipal Council does not grant the licence, the applicant can proceed to construct, re-construct or extend a wall or building, as the case may be but such construction must be in accordance with the plan which accompanied his application .." Again it has been held in 1970 DLC 512 that if rejection of plan is not communicated within sixty days then no action adverse to the party could follow upon it. The law laid down in the above decisions is applicable to the facts of this case. The submission of the learned counsel for the plaintiffs is that there is prohibition for constructing additional floors beyond ground plus first floor. The breach is between the lesser and the lessee. Similar questions of restrictive covenants were considered in the following cases:- (i) Moosa Bhunji v. Hashwani Sales & Services Ltd. and another PLD 1982 Karachi 940. (ii) R.G. Sehwani Co-operative Housing Society Ltd. v. Haji Ahmed and 3 others PLD 1983 Karachi 11. (iii) Muhammad Munir v. Ahmad Ally Memon and 2 others PLD 1982 Karachi

425. In the above cases, it was held, inter alia that breach of restrictive covenants in respect of leases of urban lands could be resisted by only the lessor. In the instant case, only the lessor, namely the Deputy Commissioner could have cause of action to resist the additional floors. The learned counsel for the plaintiffs urged two more grounds, one o infringement of right of easements of light and air and another violation o privacy. These have to be established by evidence that they have acquired any rights of easements. Mere assertion, of a supposed right is not sufficient for obtaining temporary injunction. The plaintiffs have to prove that their privacy is or will be violated. It would appear from the facts outlined above, that the facts alleged do not make out a prima facie case for restraining the defendants from raising additional floors. For the aforesaid reasons, the application is dismissed. Interim order stands vacated. It may be mentioned that this order may be construed not to have decided the issues involved in the suit, which will finally be determined on full appraisement of evidence that may be adduced by the parties. H.B.T./V-15/K Application dismissed.