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
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.