IN THE HIGH COURT OF SINDH AT KARACHI
SUIT
NO.2142/2014
Plaintiffs : Muhammad Iftikhar Ali and another,
through
Mr. Rehman Aziz Malik advocate.
Defendants
: Amber Alibhai and others,
Through:
Mr. YousufSaeed advocate.
SUIT
NO.1118/2014
Plaintiff : Amber Alibhai,
Through:
Mr. YousufSaeed advocate.
Defendants
: Muhammad Naeem and others,
Through:
Mr. Rehman Aziz Malik advocate.
Date
of hearing : 28.05.2015.
Date
of announcement : 29.05.2015.
SalahuddinPanhwar, J:Above
captioned suits are counter suits filed by the parties against each others.
Brief facts of the case are that plaintiffs Muhammad Iftikhar Ali and Muhammad
Ejaz purchased Plot No.145-R, admeasuring 500 Sq. yards situated on Hali Road,
Block 2, PECHS Karachi from Muhammad Naeem; that defendant No.1 Amber Alibhai
claims to be owner/ occupant of the plot adjacent to the subject plot and has
instituted Suit No. 1118/2014. It is asserted that adjacent to subject plot of
plaintiff, there are two privately amalgamated plots i.e Plots No.145-P and
145-Q Block 2, PECHS Karachi both measuring 1000 sq. yards but without
permission which both purportedly belonging to defendant No.1; that plaintiffs
commenced construction over their plot in accordance with law and noticed that
defendant No.1 has not left required compulsory open space towards subject
plot; that construction on plaintiff’s plot was continued when defendant No.1
instituted subsequent suit and personally started interfering with
construction; that in said suit this Court got the property inspected and Nazir
clarified that there is no violation in construction, while construction done
by defendant No.1 violates the Town Planning Regulations 1979 as she was
required to cover area including out houses, maximum of 1/3rd and
also leave open space 15’ from main road and 10’ from other boundaries, etc;
defendant No.1 has made illegal construction in compulsory open space and deviated
from approved plan; said construction has resulted in infringement of civil,
easement, statutory and constitutional rights of plaintiffs, hence this suit
with follower prayers:-
I.
Declared that private amalgamation of suit
properties i.e. Plot No.145-P and 145-Q, Block 2, PECHS, Karachi 100 sq. yards
each can not take place without the prior written consent/permission of
the lessor, the defendant No.3 as such the private amalgamation of the
suit properties ultra virus and void and the lease is liable to be
cancelled on that ground and accordingly, direct defendant No.3 to
cancel the lease of the plaintiff, if any, with regard to plot NO.145-P and
Plot 145-Q Block 2 PECHS Karachi due to the willful violation of the clause
5 of the said lease deeds;
II.
Declare that the defendant has raised the
construction on privately amalgamated plots, the suit properties (i.e. 145-P
and 145-Q, block 2, PECHS Karachi) illegally, unauthorizedly, in
violation of the regulations and the provisions of law applicable thereto,
III.
Declare that the construction on
privately amalgamated plots, the suit properties (i.e. 145-P and 145-Q, block 2, PECHS
Karachi) as well as COS shall continue
to create a nuisance for the answering defendants and/or threaten/infringe the
easementary rights of the angering defendants and/or the answering defendants
right to privacy,
IV.
Direct the plaintiff to file the approved
plans, if any, in respect of the construction being made at the amalgamated
plots (i.e. 145-P and 145-Q, block 2, PECHS Karachi) before this Honourable Court
V.
Grant a permanent/perpetual injunction
restraining the defendant No.5 from regularizing/condoning any violation
of the building rules and regulations in general and the compulsory
open space(s) in particular on amalgamated plots No.145-P and 145-Q block 2,
PECHS Karachi;
VI.
Grant mandatory injunction and direct
the defendants to remove any illegal and unauthorized construction that
may have been put up on privately amalgamated plots, the suit properties (i.e.
145-P and 145-Q, block 2, PECHS Karachi) to bring the same in conformity
with the approved plans, if any’
VII.
Grant a permanent / perpetual injunction
restraining the defendant NO.1 from raising any further construction in
violation of the building rules and regulations in general and the compulsory
open space(s) in particular on privately amalgamated pots No.145-P and 145-Q
Block 2, PECHS, Karachi,
VIII.
Grant cost
IX.
Grant such other relief as this Honourable
Court deems just and proper in the circumstances.
(underlining &
bolding is made purposely, which is to be explained later)
2.
The record further shows that in Suit
No.,1118/2014 ad-interim injunction was granted whereby defendants were
restrained form raising any construction whereas in suit NO.2142/2014 Nazir was
appointed for inspection of suit property and he has submitted reports. Nazir’s
report with regard to suit No.1118/2014 reflects irregularities hence plaintiff
of such filed objections contending therein that such inspection was not
carried out according to law and no proper opportunity was provided to
plaintiff to submit the original maps which was erected about 50 years back.
3. I have heard
learned counsel for respective parties, on injunction applications filed in
both suits as well application under order 39 rule 4 CPC in suit NO.1118/2014.
With regard to plea of plaintiff that there is no policy in PECHS by the
official, regarding sub-division of the plots hence NOC issued by department in
favour of defendant is contrary to law. In support of such contention he has
relied upon PLD 2010 Karachi 236 whereas learned counsel for defendant while
attacking upon plaintiff, has contended that he has filed suit N.2142/2014
wherein Nazir has confirmed that private sub-division made by defendant (Amber
Alibhai) is illegal.
4. Before going
further into merits of the instant suit, I feel it quite necessary and
justified to make clear the deliberate underlining and bolding of the prayer
clause (s). All the relief (s), sought through the suit(s), entirely revolve on
a single plea i.e‘construction in violation of rules and regulations’. Even
the plea of continuity of nuisance is insisted with reference
to violation of rules and regulations in amalgamation of plots and construction
thereon. Either parties claim to be standing on legal pedestal; they do not
dispute the ownership of each other but their grievance, if any, is ‘construction
in violation of rules and regulations’.
5. I have no
hesitation in saying that every single rule or regulation is a purposeful
legislate the objective whereof to make a chain (boundary), guarding the rights
and obligation of each, living therein (applicable area of such rules and
regulation). Any violation to a rule or regulation always results in infringing
the right of individual and multiplicity thereof turns a ‘society’ into
a ‘mob’. No rule or regulation could serve its purpose unless an ‘Authority’
is constituted for enforcement of the ‘rules and regulations’. The
failure of an authority in performing its legal obligations and duties does not
necessarily constitute ‘Civil rights’
nor a decree is required for ‘directing an authority to perform its
legal duties’ because such ‘duty to be performed’ can never be
denied / disputed by the ‘Authority’ , being a command of law itself. A
decree always declares certain rights hence what (law) is already a command of
law needs no ‘decree’ (declaration). However, any colourful or malafide
exercise by an authority could well be brought before ‘Civil Court’ for
examination as the ‘Civil court’ is a court of ultimate jurisdiction.
The word of malafide on part of the ‘authority’ alone would never be
sufficient to compel the ‘Civil Court’ to entertain a suit but two
things are required to exist i.e:
i) there must be an exercise of
jurisdiction by the Authority i.e
an order;
ii) such exercise (Order) should be shown
to be malafide or colourful exercise by the Authority;
Since both parties are agitating with regard to illegality of
sub-division of both plots and there is Nazir report also, I am of the view
that it is purely domain of the defendant No.3, 4 and 5 to examine the buildings
as same is according to the byelaws and in case same are contrary to it, they
have their own mechanism to proceed against such party. Further, either parties
complaining violation of rules and regulations but have not approached to ‘authority’
concerned, which is absolutely responsibility to ensure that no violation
of rules and regulation is done else the purpose of ‘constituting’ and ‘appointing’
such ‘Authority’ shall fail. There can be no denial to the legal
position that the ‘authority’ under the law is not only competent to
ensure enforcement of rules and regulations but equally competent to take penal
action(s) including removal of illegal construction e.t.c.
6. The above
discussion and undisputed facts shows that the private parties in fact are
not at dispute / issue with each regarding their ownership/ title over their
respective properties and as already discussed that official defendants are
under undeniably command of law to ensure that rules and regulations, so
legislated to ensure for legal construction only, are strictly enforced hence
direction in this regard needs not be issued, as already said. Needless to add
that an order under Order 39 r 1 & 2 CPC is interim in nature and cannot be
legally passed where the suit cannot legally proceed.
7. Thus, in view
of above discussion, the captioned suits are hereby dismissed under Order XV
Rule 1 C.P.C.
8. While parting,
defendants No.2 to 4 are hereby directed to constitute a high level committee
with regard to issues involved in the area, as sub-division of the plot, legal
action against illegal construction e.t.c. and such committee would be
competent to take any action if any construction is going on against approval
of concerned authority. The parties can also approach the quarter concerned for
redressal of their grievance and authorities, on receipt of approach, shall
take appropriate legal action, if situation so demands and will communicate
decision/disposal of applications to parties concerned so that they could
choose further legal resort, if so desire.