Present:

Mr. Justice Aqeel Ahmed Abbasi &

Mr. Justice Ghulam Qadir Leghari .

 

C.P.No.D-2876  of  2014

 

1.    For non-prosecution

2.    For hearing of MA-10195/2014

3.    For Katcha Peshi

4.    For hearing of CMA-9937/2015

5.    For hearing of CMA-9938/2015

 

 

Date of hearing:  10.02.2016

Date of reasons: 24.02.2016

 

M/s Hyder Imam Rizvi and Tariq A. Khan Advocates for petitioners.

M/s David Lawrence and Qurban Ali Malano Advocates for resp.

Mr. Talib Ali Memon Advocate for respondent No.9.

Mr. Noor Hassan Malik, Assistant Advocate General.

 

 

O  R  D  E  R

 

 

AQEEL AHMED ABBASI, J. Through instant petition, the petitioners have sought the following relief:

 

i)             To declare that any construction raised on the land bearing survey No.76 (01-32 acres), survey No.1080 (05-09 acres), survey No.1081 (03-06 acres), survey No.1082 (04-39 acres), survey No.1083 (02-04 acres), survey No.1084 (01-19 acres) situated at Saeedabad, Tapo Arain, Taluka New Sukkur, District Sukkur vide letter dated 16.07.2014 issued by the respondent No.6is violative of applicable laws and void/ab-intio, as approved building plan for raising any construction on subject-property is in abeyance by respondent No.8 and 9.

 

ii)            Declaration that the letter dated 16.07.2014 issued by the respondent No.6 withdrawing their previous letter dated 27.06.2014 is illegal, unlawful being contrary to the provisions of the Building Regulations 1979/2002, principles of natural justice and in violation of section 24-A of General Clauses Act and is liable to be set aside forthwith and any construction raised on the basis of the letter dated 16.07.2014 and in violation of letter dated 27.06.2014 on the subject-property is liable to be removed/demolished.

 

iii)           Declaration that the acts of the respondents Nos.2, 3 and 6, as stated in the petition, amounts to violation of the fundamental and constitutional rights of the petitioners as guaranteed vide Articles 4, 8, 9, 10-A, 14, 23 and 24 of the Constitution, 1973.

 

iv)           For directing the respondent No.7 to ensure that respondents Nos.2 and 3 may not register documents creating third party interest in any manner in subject-property, till the final disposal of the above petition.

 

v)            Declaring  that the respondent No.6 having no lawful authority or jurisdiction to issue impugned letter dated 16.07.2014 contrary to the provisions of law.

 

vi)           Directing the respondent No.8 and 9/SBCA to demolish the entire unauthorized and illegal structure raised on the subject-property/land bearing survey No.76 (01-32 acres), survey No.1080 (05-09 acres), survey No.1081 (03-06 acres), survey No.1082 (04-39 acres), survey No.1083 (02-04 acres), survey No.1084 (01-19 acres) situated at Saeedabad, Tapo Arain, Taluka New Sukkur, District Sukkur.

 

vii)         For permanent injunction restraining the respondent No.7 not to register a sale deed/sub-lease or any other documents creating a third party interest in subject-property.

 

viii)        Restraining the respondents Nos.2 and 3 their agents, successors, representatives, servants, employees, officers, assign or any to her persons acting under their control or guidance from raising any construction or any other work relating to constructions on the subject-property/land bearing survey No.76 (01-32 acres), survey No.1080 (05-09 acres), survey No.1081 (03-06 acres), survey No.1082 (04-39 acres), survey No.1083 (02-04 acres), survey No.1084 (01-19 acres) situated at Saeedabad, Tapo Arain, Taluka New Sukkur, District Sukkur and/or to create any third party interest in any manner.

 

 

2.                     Notices were issued, pursuant to which the private as well as official respondents have filed their comments/objections, wherein the allegations as contained in the petition have been denied and the claim of the petitioner has been seriously disputed, whereas, objection with regard to maintainability of instant petition has also been raised on the ground that the controversy raised through instant petition is already pending before the competent Court of jurisdiction, whereas, the Hon'ble Supreme Court of Pakistan in Civil Petition No.417-K and 477-K of 2013 has also taken cognizance of the matter and several restraining orders have been passed in respect of subject-land/project. On 26.08.2015, when instant matter was taken up for hearing, following order dated 26.08.2015 was passed:

“Pursuant to Court notices, respondent No.6 Shahzad Fazal Abbasi, Deputy Commissioner, Sukkur, has shown his appearance, filed comments and has rendered his unconditional apology for not complying the order of this Court passed earlier. However, he submits that he has earlier filed comments, which according to Law Officer, were not complete, therefore these comments are being filed, the same are taken on record and copy whereof supplied to the learned counsel for the petitioners.

            Learned counsel for the private respondents have raised objections with regard to the maintainability of this petition on the ground that multiple prayers have been made  whereas the litigation in respect of subject land has already been pending before competent Court of jurisdiction; hence instant petition is liable to be dismissed in limine.

            While responding to such objection, learned counsel for the petitioner submits that the objection raised by the learned counsel for the respondents, is misconceived, whereas though instant petition, the petitioners have raised objection with regard to a letter of withdrawal issued by respondent No.6 Deputy Commissioner, Sukkur dated 16.07.2014, which does not contain any reason, while earlier letter dated 27.06.2014 was issued by respondent No.6 after hearing both the parties and same could not have been withdrawn in such a cursory manner without any reason.

            Learned counsel for petitioner has stated that the petitioner would be pressing his grievance to the extent of raising construction over subject land by the respondents in violation of approved building plan, whereas according to learned counsel for the petitioner even the lay out plan is under abeyance.

            A query was made from the learned counsel representing respondent No.9 Sindh Building Control Authority with regard to subject land and approval of building plan if any, learned counsel states that in spite of repeated requests, copy of instant petition, has not been supplied; hence he claims copy of petition along with its annexures, which learned counsel for the petitioner, undertakes to supply within 03 days. Whereafter comments shall be filed by the respondent No.9 Sindh Building Control Authority, positively before the next date of hearing with advance copy to the learned counsel for the parties. Learned counsel for the respondent No. 9 Sindh Building Control Authority also submits that as per his information, the litigation is pending between the parties in respect of subject land, whereas the building plan is still pending before the competent authority.

            Let detailed comments shall be filed positively by respondent No.9 Sindh Building Control Authority before next date with advance copy to other parties. Detail of pendency of the building plan for approval filed by the respondents, if any, shall also be furnished. Learned counsel for the parties are directed to file a statement showing the pending litigation between the parties in respect of the subject land and also to place on record the orders passed by the competent Court of jurisdiction, including the order(s) of the Honourable Supreme Court, if any, relating to subject land(s) to avoid any conflicting orders by this court in the instant petition.

            By consent to come-up on 15.09.2015 at 11 am. Interim orders passed earlier to continue till the next date.”

 

3.                     Thereafter, the matter was taken up for hearing from time to time and was finally adjourned to 10.02.2016 by consent of the parties and has been heard at length. Learned counsel for the private respondents has vehemently argued that the petitioners, who claim their entitlement in respect of the subject-land/projects pursuant to some purported oral agreement between the parties, have already filed FC suit No.190/2011 before learned 1st Senior Civil Judge, Sukkur against respondent, for Specific Performance of Contract, Cancellation of documents and perpetual injunction in respect of same subject-land/projects, as referred to hereinabove, which is admittedly pending adjudication. Whereas, according to learned counsel, the petitioners could not obtain any favourable injunctive order, nor they are proceeding with the matter in suit for the reasons best known to them, and have instead filed frivolous complaints as well as instant petition and obtained restraining orders through concealment of facts and by way of misrepresentation. It has been further contended by the learned counsel that the petitioners have no locus standi to file instant petition on the basis of purported oral agreement, which otherwise is subject-matter of F.C. suit before Civil Court of jurisdiction, whereas, the similar plea with regard to raising alleged illegal construction by the respondents, has also been agitated before the Hon'ble Supreme Court in Civil Petition No.417-K and 477-K of 2013, in which proceedings, the Hon'ble Supreme Court has been pleased to pass orders, whereas, two contempt proceedings have also been filed i.e. Criminal Original Petition No.11-K and 14-K of 2014, wherein, it has been alleged that the respondents are raising illegal construction over subject-land/projects. Learned counsel for the respondents submits that the petitioners, without having any prima facie case or title over the subject-land/projects, and after having failed to obtain any favourable restraining orders from the competent Court of civil jurisdiction in the aforesaid suit filed on the same subject-controversy, has filed instant frivolous petition in duplication of the above proceedings, whereas, the Hon'ble Supreme Court has also taken cognizance of the matter relating to alleged illegal construction by the respondents over subject-land/projects and has passed various orders in the aforesaid petitions. It has been further prayed that an ex-parte restraining order has been obtained from this Court in the instant petition through concealment and misrepresentation of facts in order to circumvent the proceedings pending before the competent Court of civil jurisdiction and before the Hon'ble Supreme Court. Learned counsel for the official respondents also support such contention of the learned counsel for private respondents in the instant case, however, learned counsel for Sindh Building Control Authority has pointed out certain violations in respect of construction being raised on the subject-land/projects by the private respondents.

 

4.                     While confronted with such factual position as stated by the learned counsel for the respondents, learned counsel for the petitioners could not satisfactorily dispute such factual position, however, submitted that since the private respondents are raising construction in violation of approved building plan, whereas, the dispute between the parties over such subject-land/projects is already pending before the competent Court of civil jurisdiction, therefore, the petitioner is left with no option but to file instant petition seeking restraining orders from this Court with regard to illegal construction being raised by the respondents. It has been further stated that the petitioner through instant petition has also challenged the letter dated 16.07.2014 issued by the Deputy Commissioner, which according to learned counsel has been passed in violation of law and by ignoring the earlier well-reasoned order passed on the same subject-controversy by the Deputy Commissioner in the instant petition. It has been contended that the respondents may not be allowed to raise any construction over the subject-land/projects till decision of the suit pending before the 1st Senior Civil Judge, Sukkur, whereas, the respondents may be further directed not to violate the order passed by Hon'ble Supreme Court in the above proceedings.

 

5.                     We have heard the learned counsel for the parties, perused the record as well as the order passed by the Hon'ble Supreme Court in Civil Petition No.417-K and 477-K of 2013. Admittedly, the petitioner No.1 namely Muhammad Arif Memon has filed a F.C. Suit No.190/2011against the private respondents Nos.2, 3 and 4 as well the Government of Sindh, in respect of same subject-land/projects before 1st Senior Civil Judge, Sukkur, whereby, the petitioner has claimed his entitlement over subject-land/projects pursuant to some oral sale agreement, which is pending adjudication, whereas, record further reveals that Hon'ble Supreme Court in Civil Petition No.417-K and 477-K of 2013 as well as Criminal Original Petition No.11-K and 14-K of 2014 has passed several orders in respect of same subject-land/projects. It will be advantageous to reproduce hereunder the order dated 20.12.2013 passed by Hon'ble Supreme Court in Civil Petition No.417-K and 477-K of 2013, which reads as follows:

“Mr. Rasheed A. Rizvi, learned Sr. ASC appearing in both these petitions submits that there is a dispute between the petitioners and the respondent No.1 regarding the title to the land in which the latter is developing two housing projects viz. Green Sukkur Model Town and Doctor’s Villas located in the city of Sukkur. However, with mala fide intention the respondent No.1 succeeded in obtaining a layout plan as well as permission for the building plans for one of the projects called Crystal Model Town and is utilizing the same for construction in other projects viz. Doctor’s Villas and Green City. Learned ASC further submits that in these circumstances orders have been obtained from the learned High Court by misrepresentation, fraud etc. whereby the authorities concerned have been directed to decide the case of the respondent No.1 for approval of layout plan etc. in respect of the Green Sukkur Model Town. Mr. Shahid Jamil Khan, Principal Law Officer of the Sindh Building Control Authority has supported the contentions of Mr. Rasheed A. Rizvi and submitted that although approval for layout plan and buildings were given by the revenue Department and the authority respectively for Crystal Model Town City but later it was discovered that in fact respondent No.1 was not the legal owner of the land etc. upon which the said project was coming up and hence action was initiated for the demolition of the construction raised thereon which has been resisted by the respondent No.1.

2.                    Rana Muhammad Irshad, Attorney of respondent No.1 says that the title in respect of respondent No.1 regarding the housing protects in question is totally clear and the authorities as well as the petitioners are mala fidely trying to mislead this Court. he further submits that now in one of the projects almost 80% work has been completed viz. Crystal Model Town and at this stage the stance of the Sindh Building Control Authority as well as Revenue Department regarding the title is totally mala fide and unlawful.

3.                    We have heard the learned Sr. ASC as well as the Principal Law Officer of SBCA and the Attorney of respondent No.1 and are of the view that the matter between the petitioners and respondent No.1 is purely of a civil nature as title of the property in dispute can only be decided by a Civil Court. Consequently, if the petitioners are at all minded to do so they should approach the Civil Court for their remedy. It would also be seen that once the concerned authorities have approved a certain housing project which is admittedly now 80% completed, they cannot now demolish it on the ground that the title was not clear. On the other hand, respondent No.1 cannot also be allowed to carry on further construction etc. until the title is clear. Consequently, we would dispose of this petition by directing the Sindh Building Control Authority to ascertain the title documents of the respondent No.1 and thereafter decide the case with a reasoned Order. Similarly, as observed above, the petitioners would be free to approach the Civil Court or any other agency regarding their dispute with the respondent No.1. It is also further directed that in case the title is clear, the respondent No.1 would follow all the Rules, Regulations and Bye-laws of the concerned Department regarding the construction of the housing project; however, till then parties shall maintain status quo. With these directions, both petitions are disposed of.”

 

6.                     It will be equally relevant to reproduce hereunder the orders dated 25.02.2015, 15.07.2015 and 23.07.2015 passed by the Hon'ble Supreme Court in Criminal Original Petition No.11-K and 17-K of 2014 and Criminal MA-45-K of 2015, which read as follows:

 

ORDER DATED 25.02.2015.

 

“This Court on 20.12.2013 has passed an order, whereby the construction, which was being raised by the respondent in the premises in dispute, was stayed on a statement that 80% construction has been raised and the project has not been completed as yet.

 

2.                    The grievance of the petitioner’s counsel is that after detailed order of this Court, by which the petition was disposed of, the respondent continued construction and till date 10% to 15% work has been raised and the statement that 80% construction was completed was wrongly incorporated in the order by misleading the Court.

 

3.                    As against this, Counsel representing the respondent states that construction was raised on the Survey Number, which was not the subject matter of the proceedings and the scheme. The officer of Sindh Building Control Authority on the other hand submits that a Report was sought on 20.06.2014 and on 03.07.2014, it was stated in the report by the officer inspecting the property in dispute that construction is being raised. This report, however, does not mention in clear terms the raising of construction on the disputed survey numbers. It appears that officers of Sindh Building Control Authority have failed to discharge their duties in terms of Section 11 of Sindh Building Control Ordinance, 1979, besides, they were duty bound to inspect the site after the order of this Court passed on 20.12.2013, so that the stage of construction on the property should have figured. This is slackness on the part of Sindh Building Control Authority.

 

4.                    In any event, we direct the Regional Head/Deputy Director, SBCA to inspect the site tomorrow and submit a detailed report for our perusal in Chambers. The report shall clearly mention the stage of construction supported with the photographs. This matter is adjourned to the next session but in the intervening period the inspection shall be carried out and report to the effect should be submitted to this Court.

 

5.                    The respondent’s Attorney is put to notice that if in discharge of the duty, any harm is caused either to the Regional Head/Deputy Director, SBCA or any of his staff, the respondent or any one acting on his behalf will be proceeded against in contempt. During inspection, the SSP, Sukkur, shall accompany the SBCA officers.”

 

 

ORDER DATED 15.07.2015

 

            “An application has been received on behalf of Dr.Farogh Naseem learned ASC for adjournment on the ground that his mother is seriously unwell. Mr. Rasheed A. Rizvi learned Sr. ASC appearing for the petitioner Rao Muhammad Shakir says that despite restraining order issued by the Court, the petitioner Muhammad Arshad Awan is carrying on construction in the impugned property.

 

2.                    This has been seconded by Mr. Shahid Jamil Khan, Principal Law Officer, SBCA, who says that the title of Rao Muhammad Shakir in the area under dispute is not at all clear and hence any construction thereon would be illegal. He further says that the approved building plan submitted by Rao Muhammad Shakir was also cancelled. In the circumstances of the case, we would direct that till the next date of hearing Rao Muhammad Shakir will not carry out any construction in the area in question of the disputed societies. The cases are adjourned to 23.07.2015.”

 

 

ORDER DATED 23.07.2015.

           

            “During hearing, we were informed by Dr.Farogh Nasim that the subject proceedings were confined to Doctor’s Villas and Green Sukkur Model Town projects and inadvertently three other projects which were not subject-matters of CPLA Nos. 417-K/2013 and 477-K of 2013 filed by Muhammad Arshad Awan and Mst. Sodhi and others, were also included in the interim order of this Court. According to him, the order dated 25.02.2015 requires review for which he will make proper application. As against this Mr.Rasheed A. Rizvi states that once it is brought to the notice of this Court that illegalities are committed by the Builders, this Court irrespective of the fact that the prayer in the petition does not cover such project, can take note of such illegalities under Article 184 (3) and 187 of the Constitution and pass appropriate orders.

 

2.                    We will not record a finding at this point of time instead we will direct that proper application for review of the order be made, to which Mr. Rasheed  A. Rizvi will be at liberty to file his objections and after hearing the parties, appropriate orders will be passed. To be taken up in the next session. In the intervening period, the Principal Law Officer of SBCA may also place before us the Concept Plan of all the five projects independent of each other with the violations in raising them by the owners/Builders. Dr.Farogh Nasim or any other counsel representing the projects may file their objections. To be fixed in the Court in the next session.”

 

7.                     From perusal of hereinabove facts and circumstances of the case, we are of the considered opinion that the claim of the petitioners with regard to title is pending before competent Court of civil jurisdiction, whereas, no material has been placed before this Court, which could establish the title or possession of the petitioners over subject-land/projects. As regards the legality of letter dated 16.07.2014 issued by respondent No.6 withdrawing the previous letter dated 27.06.2014 it appears that the same is also subject-matter of a C.P. No.D-2125/2014, whereas, the petitioner has filed an application under Order 1 Rule 10 CPC along with an application under Order 39 Rule 4 CPC and another application under Section 75 read with Order 36 Rule 9, which are still pending adjudication. As regards the alleged violation of orders passed by Hon'ble Supreme Court in the afore-referred Civil Appeals, admittedly, the contempt applications have been filed wherein orders have been passed by the Hon'ble Supreme Court, as referred hereinabove. We may observe that all the contesting parties are legally bound to obey and comply with all such orders passed by the Hon'ble Supreme Court in the aforesaid proceedings, whereas, in case of any violation, they will expose themselves to contempt of Court proceedings, in respect of orders passed by the Hon'ble Supreme Court. Learned counsel for the petitioner has not been able to satisfy this Court as to maintainability of instant petition, whereby, seriously disputed facts have been agitated on the one hand, whereas, the relief sought through instant petition has already been sought before the competent Court of civil jurisdiction in the aforesaid suit filed by the petitioners. We are of the considered opinion that objection with regard to title, possession or illegal construction by the respondents over the subject-land/projects can be agitated by the petitioners before the competent Court of civil jurisdiction either in the aforesaid suit filed by the petitioners or through a separate suit before the competent Court of jurisdiction with particular reference to raising of illegal construction by the respondents without approved plan or any violation of approved plan as all these allegations require evidence.

 

8.                     We are of the considered opinion that any orders passed by this Court in the instant petition will not only frustrate the suit pending before the competent Court of civil jurisdiction relating to same subject-land/projects, but will also amount to take the cognizance of a matter, which has already been taken cognizance by the Hon'ble Supreme Court in the aforesaid proceedings, and may result in duplication of proceedings and overlapping orders in respect of same subject-land/projects.

 

9.                    Accordingly, we have not been able to persuade ourselves to grant any relief to the petitioner in the instant matter, which was dismissed by our shot order dated 10.02.2016, and these are the reasons of such short order.

 

10.                  However, before parting with this order, we may observe that dismissal of instant petition will not affect the legal rights or entitlement of either party over subject-land/projects or the proceedings pending before the competent Court of jurisdiction in this regard, whereas, Sindh Building Control Authority shall also be at liberty to initiate proceedings for alleged violation of approved building plan by any party towards illegal and un-authorized construction, strictly in accordance with law, however, subject to orders already passed by the Hon'ble Supreme Court in this regard.

 

 

 

                                                                                   JUDGE

 

 

                                                JUDGE

 

N.M.