1999 PLP 1823 (YLR)

Structure of Ground Floor completed. Without flooring, partly partition walls of the shops were raised. Side walls towards its adjacent plots were not raised. Front side without main gate towards M.A. Jinnah Road. As per approved plan, there is cut line of 30' x 24' at front side towards M.A. Jinnah Road, where only roof of the shops, without partition wall has been constructed. " The K. M. C has filed written statement, as well as counter‑affidavit to the application for injunction filed by the plaintiff. They have maintained that the plaintiff in violation of the terms and conditions of the lease, as well as, approved plan, have raised construction on the compulsory open space as well as on the road alignment area which is liable to be demolished. On observation of violation of the approved plan as well as lease condition, the plaintiff was directed to submit copy of the approved plan. Instead of doing so, the plaintiff filed the present suit with mala fide intention only to keep the construction on the open space and on the road alignment illegally and unauthorisedly. They have denied that the plaintiffs have any case for injunction. I have heard the learned counsel for the plaintiff, Mr. Farogh Nasim and Mr. Yasin Kiyani, learned counsel for the defendant (K.M.C.). Learned counsel for the plaintiff has convessed before me that the plaintiffs are raising construction in terms of the approved plan and the dispute is in respect of the construction on cut line. He contended that subsequent approval in respect of the additional floors and to meet the cut line was approved subject to the undertaking/ agreement executed by the plaintiff (i.e. no compensation agreement). He particularly referred to clause (10) of the conditions, which reads as under:‑‑‑ "10 The owner/builder shall also in corporate the same condition as mentioned in the No Compensation Agreement for those agreement which are executed with buyers/ tenants/sub‑leases that in case the land is required by the authorities for further road widening scheme they shall demolish the structure raised on cut line at their own cost and shall hand over the land to relevant authorities without any compensation. " He further contended that there are other buildings, which have been constructed in the same line, including the cut line and the plaintiff is being discriminated. He further contended that the K. M. C. has no authority/jurisdiction in respect of the construction under the Sindh Building Control Ordinance as well as Rules and Regulations made thereunder. He further contended that the construction has been raised in terms of the approved plan with an undertaking that as and when necessity would arise for , road widening, the same will be demolished without any compensation. He further contended that the defendants particularly K.M.C. is threatening to take action against the plaintiff, which amounts to interference in the use of the property owned by the plaintiff in violation of Article 24 of the Constitution of Islamic Republic of Pakistan. He further contended that the plan has been approved and concession has been given (in terms of new approval and the Non- Compensation Agreement pertaining to cut line) and such concession cannot be taken away, as the principle of locus poenitentia would come into play and the approval once granted cannot be rescinded or recalled as it has been acted upon. He referred the following cases:‑‑‑ (i) Messrs Pak Kausar Cooperative Housing Society Ltd. v. Sindh Board of Revenue (Land Utilization) (1989 ALD 478). (ii) Muhammad Ismail v. The State (1980 SCMR 268). (iii) Chairman, Selection Committee/ Principal, King Edward Medical College v. Wasif Zamir Ahmed (1997 SCMR 15). (iv) Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan (1992 SCMR 1652). He further contended that finishing work is complete and third party rights have been created, possession has been handed over and, thus, it is past and closed chapter and the same cannot be disturbed. He further contended that a number of buildings exist in the area having construction on cut line and in the present case the competent authority has permitted the construction and the K.M.C. cannot pick and choose and the plaintiff cannot be singled out. It would be a discriminatory act on the part of the K.M.C. He referred the cases of (i) Multiline Associates v. Ardeshir Cowasjee (PLD 1995 Supreme Court 423) and (ii) Tariq Kurd v. Returning Officer, A.C. Dhadar (1995 CLC 820). He further contended that the balance of convenience does not lie in stopping the construction and the plaintiff has been authorized to construct at his own risk and costs, which has been found to be sufficient security by the Supreme Court in the case of (1995 SCMR 753) Zakiya Khatoon v. Roomi Enterprises. He lastly contended that where serious questions of law and facts are involved, injunction has to be granted. He referred to the case of Muhammad Arif Effendi v. Egypt Air (1980 SCMR 588). The learned counsel for the K.M.C. has vehemently opposed the application and maintained that the constructions on the road alignment is illegal and the K.M.C. is the only authority responsible for the maintenance and construction of road. The agreement between the plaintiff and K.B.C.A. is not binding on K.M.C. The K.M.C. as lessor has every right to take action where there is violation of the terms of lease. I have considered the arguments advanced by the counsel for the respective parties, and the cases referred by the learned counsel of the plaintiff. In the present case, the moot point is whether the plaintiffs are raising construction in terms of the approved plan. There is no controversy in respect of the construction to the extent of number of floors. The dispute is to the extent of construction on the cut line. The K.B.C.A. after the approval from its Town. Planning Department has given approval for the construction of three additional floors including the cut line, subject to no compensation agreement for removal of construction of cut line in case of road widening. The approval by Town Planning Department of the K.B.C.A. and approval of the plan, particularly the last approval permitting the construction on cut line were subject to no objection from the K.M.C., as is evident from the contention No.

1. The contention that the construction is complete and third party interest has been created in the building and possession having been handed over is contrary to the facts contained in the Nazir's report. The Nazir has reported about the construction on the cut line of 30 x 24.2 feet on front side of road that only roof of the shop without partition wall has been constructed. The construction on the cut line, according to the Nazir is as follows:‑‑‑ "There is a cut line of 30 x 24.2' at front side towards K.M.C. where only roofing of the shops without partition wall has been constructed." The plaintiff's plan was cleared by the Controller of Planning on 28‑10‑1997, subject to the approval of the Director Land, K.M.C. The relevant portion of Condition No. l of the clearance/approval, dated 28‑10‑1997 reads as under:‑‑ (1) Subject to approval of Director Lands, K. M. C." The proposed plan for the additional floors, 5, 6 and 7 and cut line was approved on 3‑11‑1997. No Compensation Agreement was submitted by the owner, dated 25‑10‑1997. They were allowed to construct on cut line subject to approval of the Director, Lands, K.M.C. In the present case, it is not the case of plaintiff that after obtaining approval of the plan, they also obtained the approval from K.M.C. and condition of the approval was fulfilled. Thus, the construction on cut line by the plaintiff cannot be termed to be in terms of approval as one of the conditions attached thereto was not complied with. The construction on cur line as reported by the Nazir is to the extent of roofing only. Even partition walls of shops were not there at the time of inspection, as such unless the completion certificate is obtained, the possession cannot be handed over to third party. So far the contention of the plaintiffs' counsel that the plaintiffs have been discriminated, as other buildings have not been touched by the defendants, the allegation has been denied in the counter- affidavit. No rejoinder has been filed. Not a single approval has been brought on record by the plaintiff to show such discrimination, as such the plea has no force. In view of the above discussion, the plaintiffs have failed to make out a case for injunction particularly in respect of the construction on cut line, the application has no merits and the same is hereby dismissed. Nazir's reference is taken on record. The Nazir is allowed to appropriate his fees subject to the administrative approval of the Hon'ble Chief Justice. H.B.T./P‑71/K