TAUFIQ AHMED (Plaintiff) VS TRUSTEES OF THE PORT OF KARACHI (Defendant)

ORDER SHEET

ORDER

SHEET

IN

THE HIGH COURT OF SINDH, AT KARACHI

Suit Nos. 1640 & 1641 of 2006

Date Order with signature of Judge

Mr.

Salman Hamid, Advocate for plaintiffs.

Mr.

Sarfraz Sulheri, Advocate for defendant.

Plaintiff in Suit No. 1640 of 2006 was allotted plot of 50 Sq. Meters bearing No. 4/16 by defendant through letter dated 27.4.2000, annexure ‘D-2’ to the plaint. Plaintiff in Suit No. 1641 of 2006 was also allotted plot of 50 Sq. Meters bearing No. 4/17 by the defendant through letter dated 27.4.2000, annexure ‘A’ to the plaint. Terms and conditions of allotment of two plots to the two plaintiffs are common. The rent of both the individual plots was fixed at Rs. 1210/- per Sq. Meter per annum. The purpose of allotment mentioned in the allotment letters was for Hotel and Boat Building Industry, Fisheries/Freezing Plant. The period of allotment was five years. The plaintiffs were also required to sign and execute lease after affixing necessary stamp on it within one month from its receipt from the defendant. The possession of the plots appears to have been delivered by the defendant to plaintiffs. The defendant gave notice dated 20.11.2006 to the plaintiffs cancelling the allotment of the plots and for recovery of their possession on the ground that plaintiffs have committed violation of terms and conditions of allotment and there was outstanding rental dues in the sum of Rs. 169,030/- against the plaintiff in Suit No 1640/2006 and Rs.172,151/- against the plaintiff in Suit No.1641/2006. On receipt of such notice plaintiffs have filed these suits for declaration, permanent injunction and damages against the defendant. With the plaints, plaintiffs have also filed applications under order XXXIX Rule 1&2 CPC for grant of interim injunction. The defendant has filed written statement so also the counter affidavit in both the suits. Plaintiffs have filed affidavits in rejoinder.

It was contended by learned counsel for the plaintiffs that the plaintiffs were allotted the plots, of which plaintiffs have paid upto date rent and no amount in respect of rent is outstanding. He further contended that plaintiffs have constructed a building according to the plan approved by the defendant and that no violation whatsoever of the terms and conditions of allotment was made and the notice issued by the defendant was altogether unjustifiable.

On the other hand, learned counsel for defendant contended that the accumulated defaulted rent was paid by the plaintiffs after the defendant has already given notice of cancellation of the plots. He further contended that the plaintiffs were required to use the plots in terms of allotment letter that is for Hotel, Boat Building Industry, Fisheries and Freezing Plant but instead the plaintiffs unlawfully amalgamated their Plot No. 4/16 with Plot No. 4/17 and constructed one single building on 100 Sq. Meters of land comprising of ground + five floors having residential flats in it and that no approval for such construction of the building was granted by the KBCA. He further contended that even the plaintiffs have subletted the plots to unauthorized person and that they have no subsisting interest in the plots and they have no cause of action for filing of the suits. He finally contended that not only the plaintiffs’ applications for interim relief are liable to be rejected but the plaints are also liable to be rejected under Order VII Rule 11 CPC.

I

have considered the submissions made by learned counsel for the parties and have gone through the record.

There is no dispute between the parties with regard to the allotment of the plots. The notice of cancellation of allotment was issued by the defendant on 20.11.2006. The plaintiff in Suit No.1640/2006 has paid accumulated outstanding rent in the sum of Rs. 169,030.00 on 2.12.2006 while plaintiff in Suit No. 1641/2006 has paid accumulated outstanding rent in the sum of Rs.172,151/- on 20.12..2006. This is apparent from the cash received stamp of the Bank appearing on both the receipts attached to the plaints. Not much turns upon the fact of delay in payment of rent for the reason that the allotment letters themselves provide that if the rent is not paid within prescribed period of one month markup at the rate of 14% per annum with quarterly rests (compound interest) will be charged upon the rent in arrears on expiration of the one month until payment. There is no provision in the allotment letters that on account of delay in payment of rent, the allotment will become liable to be cancelled.

As regards the question of amalgamation of Plot Nos. 4/16 and 4/17, both of 50 Sq. Meters each making it that of 100 Sq.Meters and thereafter raising of a construction on such amalgamated plots without approval of the competent authority that is KBCA, same requires consideration.

The plaintiffs have alleged in the plaints that construction was raised on the plots as per approval of defendant. In the rejoinder affidavit the fact of raising of construction of building by the plaintiffs is again mentioned. No approval of the defendant for raising of construction is attached with the plaints. With the rejoinder affidavit, the plaintiff in Suit No.1640/2006 has filed a copy of letter dated 15.11.2000 of the defendant addressed to the Chief Controller of Buildings, KBCA Karachi by which the defendant seems to have submitted five sets of plan of Plot No. 4/17 belonging to Taufiq Ahmed for approval. Annexure R/2 is an acknowledgement slip of KBCA purporting to be dated 31.1.2004 in the name of plaintiff in respect of Plot Nos. 4/16 and 4/17 Fish Harbor Boat Building, Keamari, Karachi which is signed only by a counter clerk. Annexure R/3 is a receipt of KBCA dated 24.12.2004 in respect of plot No. 4/16 and 4/17. The receipt appears to be for scrutiny fee and regularization etc. Annexure R/4 & 5 are counter foils of payment orders in the sum of Rs. 2000/- each in favour of defendant both dated 13.9.2003 and finally R/6 is a request for amalgamation of Plot Nos. 4/16 and 4/17 Boat Building Yard West Wharf. The date of this application appears to be 13.9.2003 and it is signed by one and the same person on behalf of the plaintiffs as attorney. Yet again with the rejoinder affidavit the plaintiffs have not filed approved plan of the building by the KBCA nor permission was granted by the defendant for amalgamation of the two Plots No.4/16 and 4/17 into one plot. Learned counsel for the plaintiffs during the course of arguments did not dispute the fact as contended by learned counsel for the defendant that two plots have been amalgamated and that single building comprising of residential flats has been constructed.

Apparently one may say that there is no infringement of the allotment letter in having the two plots amalgamated but the same may not reflect the real position. As it appears that as a matter of scheme the defendant seems to have made allotment of plots of 50 Sq. Meter and such scheme of the defendant could not have been unilaterally changed by the plaintiffs themselves by having plot No.4/16 amalgamated with plot No.4/17. There is no allegation in the plaints that KPT has allotted larger plots in the area or has allowed amalgamation to any other allottees. Rational of the scheme could not much be commented upon but the very fact that both Plots No.4/16 & 4/17 were of 50 Sq.Meters each reflects that they were meant to remain two distinct plots of the size allotted. Plaintiffs’ counsel has not shown any provision on the basis of which the defendant could have allowed amalgamation of the two plots.

As noted above, plaintiffs have raised construction of one single building on the two amalgamated plots and there is neither in the plaints nor in the rejoinder affidavits of the plaintiffs any allegation to the effect that such construction was made by them after obtaining approval of the competent forum that is KBCA. Plaintiffs in the plaints have stated that construction was raised on the approval of defendant. Such fact is negated by the plaintiffs’ own document which is attached with the rejoinder affidavit as annexure R/1 which shows that approval of KBCA was required to be obtained as the plan was forwarded by the defendant to such authority for approval. Sub-section (1) of Section 6 of Sindh Building Control Ordinance 1979 provides 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. Sub-section (2) of the same section provides that no building mentioned in sub-section (1) shall be, occupied by any person or shall be allowed by the builder to be occupied, before the Authority has, on application of the occupant or owner, issued occupancy certificate in such manner as may be prescribed. Section 7-A of the said Ordinance provides consequences of violation of certain provisions and stipulates that where the provisions of sub-section (1) of section 6 are violated the building may without prejudice to any other action including sealing of the building or ejectment of the occupants be ordered by the authority or any officer of the authority authorized in this behalf to be demolished, at the cost of the builder in the case of public buildings and the owner in other cases.

In the case of HAWA BAI V/S HAJI AHMED & ANOTHER (1987 CLC 558) Saleem Akhtar, J. (as his lordship then was) at page 559 has observed as follows:

“In the present case the defendant No. 1 has not obtained the approval of the Building Control Authority. According to Mr. Umrani Regulation 23 provides that even before obtaining the approved Plan and sanction construction can be raised. This is a wrong interpretation placed upon the provision 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.1 wants to clothe his illegal acts under the sanction of the Court which cannot be permitted.”

In view of the above state of law, patent illegality seems to have been committed by the plaintiffs in constructing the building without obtaining approval from the Building Control Authority, which is mandatory requirement of law, consequences of which are mentioned in the above referred Section 7-A.

In view of the above discussion the admitted position on the record is that plaintiffs have amalgamated their Plot No.4/16 with Plot No.4/17 illegally and have also constructed a building on the amalgamated plot without approval from the Building Control Authority, which both acts of the plaintiffs are contrary to the law and do not entitle the plaintiffs to the grant of relief as prayed in the applications.

There is no gain in saying that once it is found that the plaintiffs have themselves committed illegalities as is patent from the plaints and rejoinder affidavits filed by them, the Court will not come to their rescue for perpetuating such illegalities. Having come to the conclusion that plaintiffs have themselves committed illegalities in amalgamating their Plot No. 4/16 with Plot No. 4/17 and thereafter having constructed a building on the amalgamated plots without seeking approval of the Building Control Authority, which is mandatory requirement of law, neither the plaintiffs will be entitled to declaration, nor permanent injunction nor to damages as claimed in the suit. Rather the plaintiffs will have no cause of action for filing of the suit as maintaining of such lis on Court file will unnecessarily amount to burdening the court with altogether frivolous suits and will amount to giving of premium to the plaintiffs for their illegal acts. Court is not a sanctuary for such lis and it should be buried at the first available opportunity. Consequently, not only the applications for injunction are dismissed, the plaints are also rejected under Order VII Rule 11 CPC.

J U D G E