HIGH COURT OF SINDH AT KARACHI

 

Suit No. 1582 of 1997

 

 

Mst. Marium Haji and others                      ………          Plaintiffs

 

 

Versus

 

 

Mrs. Yasmin Minhas & others                              ………          Defendants

 

 

 

Dates of Hearing:

29.09.2017, 2.10.2017, 9.10.2017, 2.12.2017, 9.12.2017, 16.12.2017, 13.1.2018 & 27.1.2018.

 

 

Date of Announcement:

2.04.2018.

 

 

Plaintiffs:                        Through Ms. Rizwana  Ismail, Advocate.

                                     

Defendant No.1  :           Through Mr. Khalid Javed, Advocate, along with Ms.Zara Vayani-Advocate.

 

Defendant No.2              Add. A.G. Syed Aley Maqbool Rizvi, Advocate.

 

Defendant No.6              Through Mr.Tariq Memon, Advocate.

 

Defendant No.8 :            Through Mr. Muhammad Ali Lakhani, Advocate

 

                                     

J U D G M E N T

 

MAHMOOD AHMED KHAN-J:          This is a suit for declaration and permanent injunction. The plaint abbreviated states that the plaintiffs are residents of Faran Society, their residential houses situated within the vicinity of the amenity plot No. 137 marked for the use of park which accordingly in the master plan of the society shows that the same is reserved for park shown “Kidney Hill /Ahmed Ali Park”. Influential person/s time and again tried to grab the plot for ulterior motives unsuccessfully on the said matter being brought up before the high ups. That sometime in 1975 some unknown persons in connivance with defendant No. 5 (Faran Co-operative Housing Society Ltd.) raised some unauthorized construction wherein one of the plaintiffs immediately took up the matter with defendant No.2 (Province of Sindh) wherein orders were passed to stop the said construction and the said defendant No.5 in response thereof stated that no proposal for construction of building of school is present and that only construction of boundary wall is made to safe-guard from encroachment. Despite the same construction was not stopped in order to usurp the valuable land of the park. That by letter dated 20-10-1986 Mayor of Karachi addressed to Chief Secretary, Government of Sindh requested cancellation of all building plans approved by Master Plan Department and no fresh plan be allowed for construction of the plot in question on the ground that residents of the area have objected to the allotment of school to one Faran Education Society. The matter was also taken up by the residents of the area with the Director Master Plan, KDA pointing out the illegal activities. The Mayor of Karachi by way of newspaper stated that the said plot is reserved only for use of park and the Governor by way of news appearing in daily “Jang” dated 8th May, 1990 directed all the concerned departments not to take any action in respect of land reserved for park. That sometime in the year 1995 residents of the area noted some activities on the amenity plot and it transpired that defendant No.1 intended to establish a commercial School and the matter was taken up before defendant No.2 by representative of the residents of the area to reconsider the said proposal of construction of school on the ground of nuisance and inconvenience to the residents. The plaintiffs as such informed the defendants and other concerned authorities in this regard including the Director General KDA specifically by letter dated 25-2-1996 requested the Honourable Chief Minister to intervene in the matter and stop illegal construction on the plot marked for park and the Chief Minister passed order dated 10-3-1997 to stop illegal construction and directed the Chief Secretary, Housing and Town Planning Department to submit his report within two weeks’ time. The plaintiff’s attorney by letter dated 11-5-1997 requested the Chief Secretary to provide them hearing before submitting any comments as desired by the Honourable Chief Minister. The defendant No. 1 however was bent upon for conversion of the use of the amenity plot reserved for park for commercial purposes by raising construction of school. The School of the defendant No. 1 has a minimum tuition fee of not less than Rs.1,500/- per student. The entire area is purely residential and the width of street on which the intended school is to be constructed is about 20 Feet only and if the school is constructed will result in congestion of traffic. The plaintiffs approached the defendants to have redresses to the exclusive residential nature of the area violating the rights of easement enjoyed by the plaintiffs and conversion into commercial area/school in order to preserve the said nature, not open to commercial activities of street vendors and hawkers including undesirable persons exposing the security and causing nuisance along with noise therefrom street blockage and de-valuation of the property. The defendant No.1 has a school adjacent to Shahrah-e-Faisal wherein it is observed that at the required times on account of traffic blockage nuisance is caused. The running of School in the residential area by the defendants amount to deny the rights of the plaintiffs in connection with the peaceful enjoyment of their rights.  The amenity plots being of various specific purposes i.e. Schools, mosques, parks, public buildings etc. were planned and laid out in the plan and near schools, mosques etc. which accommodate a large number of people, an open space, a breathing space, a lung is planned like a park. The defendants as such are commencing illegal construction converting upon space of the land of public use to unlawful commercial purpose and the defendants No.3 & 4 (Minster of Local Government and Karachi Development Authority) have failed to perform their public duties in collusion with the defendant No.1. The allotment of plot to defendant No.1 changes the use of the said plot which cannot be allowed except after inviting objections from the general public. The plaintiffs have vested right to the use and enjoyment of the said plot as a park and that the official defendants have no power to change the use of the plot without inviting objection from the general public. That only plot reserved for religious purposes or as hospital and school can be allotted to various institutions and the defendants are under the legal duty not to allow unlawful allotment as made to defendant No.1. That the number of schools in the scheme have been clearly stated and the defendants had no power or authority to increase that number by allotting the said plot to the defendant No.1. That the defendant No. 1 charges exorbitant fees and secures financial gains on the pretext of academic excellence and a good atmosphere. The poor and needy students simply cannot afford this school. The said defendants acted contrary to public interest by allotment to defendant No.1. The defendant No. 7 (Karachi Building Control Authority) had no power or authority under the law to permit the defendant No. 1 to raise construction and that order is clearly contrary to Ordinance, 1979 and that the construction not having been approved by the competent authority no construction can be raised on the said plot. The defendant No.1 started construction without following rules and regulations which resulted in the properties of the plaintiffs having been badly damaged and that the construction is raised for commercial purpose and the residents have been denied the facility originally meant for them. That the purpose laid down for change of amenity plot has been disregarded being approval of Governing Body of KDA, the nature of the same has been changed and leased out to defendant No. 1 which facts came to the knowledge of the plaintiffs when the defendant No. 1 started construction. Following prayer have been made;

A)      That the Plot No. 137 Faran Cooperative Housing Society has been reserved for Park and cannot be used for any other purpose.

B)      Declare that all action, order and direction for the conversing of amenity plot reserved for park are illegal, unlawful and without any lawful authority.

C)      Cancel the lease executed in favour of defendant No.1.

D)      Injunction may be granted restraining the defendant No.1 from constructing school building on the plot in question.

E)      Mandatory injunction be granted directing the defendants to perform their statutory obligation and develop the park on the plot.

F)       Cost of the suit.

G)      Any other and further relief as deem fit may also be granted.

 

2.       In the written statement filed by defendant No.1 denied are the allegations leveled against the said defendant and it is stated that the defendant No.5 is the parent society being a union of 24 cooperative housing societies. On 14-1-1954 the Federal Government allotted an area of 1175 acres, consisting of Survey Nos. 2,4,6,8 & 9 under survey sheet No. 35-P/1 Karachi, to the Parent Society under a licence/Agreement executed between the Governor General and the said society authorizing to ender upon the land for the purposes of developing and constructing plot thereon. That under the terms of the said agreement the society was required to submit for the approval of the Federal Government or such authority as specified by it lay out plans carving out blocks and plots and providing for the reservation of plots for amenity and for commercial purposes. The Parent Society in accordance with the terms of the agreement prepared a lay out plan which is appended by the plaintiffs, the same was prior to the execution of the agreement dated 14-1-1954. That in 1957 the defendant No. 4 was established by virtue of President’s order No. 5 of 1957. The said defendant No.4 proposed development of Hill Park and Housing Scheme of two out of three hills that existed in the area allotted by the Federal Government to the Parent society. Consequently a joint meeting attended by the representative of the Federal Government, the defendant No. 4 and the Parent Society was held under the chairmanship of then Secretary, Ministry of Works and it was decided that the two hills namely Hill Park and Kalika Mandar Hill be transferred to the defendant No.4 for development and the third hill, namely Kidney Hill was allowed to be retained by the Parent Society. That consequently a revised lay out plan had been prepared by the Parent Society on 4.2.1965 and the same was approved by the Federal Government under a Deed of Rectification. That under the revised scheme as approved by the Federal Government the location of amenity plot No. 137, Faran Society was exchanged with plot No. ST-12 as such the defendant No. 4 had been entrusted with the functions of approving schemes, it invited objections for exchange of two plots and thereafter Governing Body of the defendant No. 4 also approved the exchange. By letter dated 18-9.1968 issued by the Chief Town Planner and Architect of defendant No.4, a drawing prepared by the Chief Engineer of the Parent Society was relied upon wherein it is contended that the exchange was approved after inviting objections by the Governing Body of defendant No.4. It is further contended that by letter dated 28-10-1979 the defendant No. 4 informed the defendant No. 5 that the Parent Society had taken over possession of Plot No. 137. This plot was handed over by the Parent Society to the defendant No.5. The Parent Society under the rights conferred upon it under the agreement made with the Federal Government made on 14.1.1954 executed a sub-lease of the said plot on 28-7-1971 to the defendant No. 5 as a public amenity area. After its surrender by the defendant No. 5 to the Parent Society on 13.6.1985 the latter again leased out the same to the Faran Education Society by Registered Lease Deed dated 13-6-1985. The said Faran Education Society being unable to build school surrendered the sub lease in favor of the Parent Society by surrender dated 8-11-1995, which thereafter by a sub-lease on the same day granted a sub-lease of 99 years in favor of Foundation Public School (Pvt) Ltd. That having approved the exchange of plot No. 137 the defendant No. 4 published a notification for this proposed scheme No. 32, Falak Numa, covering an area of approximately 62 acres known as Kidney Hill. This area of 62 acres is bounded by north south and west by the land of defendant No.5 allotted to it by the Parent Society. Plot No. 137 as can be seen from the lay out plan approved by the Federal Government and the defendant No.4 falls within the boundaries of Faran Cooperative Housing Society and therefore cannot be considered a part of Kidney Hill area measuring 62 acres. That in respect of 62 acres of Kidney Hill which does not in-compasses plot No. 137 Faran Society the Parent Society during the year 1967 and 1984 with the approval of defendant No.2 allotted 22 acres to the members societies of the Parent Society, which member societies in turn allotted the same to their respective members who have constructed houses thereon and are residing therein. The remaining approximately 40 acres were allotted to the Overseas Cooperative Housing Society in the year 1993. The Parent Society also executed sub-lease in favor of the Overseas Cooperative Housing Society which also contains the division of the area of 194,879 Sq. Yds into 160 plots which have been allotted by the Defendant No. 5 to its members. The allotment of these plots is, however subject to dispute between the Overseas Cooperative Housing Society Ltd, the Parent Society, KDA, KMC and other in Const. Petition No. 1314/1990 pending before this Court. Such dispute have however nothing to do with the plot No. 137, Faran Society allotted to defendant No. 5 and leased out to Foundation Public School (Pvt) Limited. That on or about 16-9-1971 a legal notice was addressed to the Chief Town Planner of the defendant No. 4 and the Secretary of the defendant No. 5 on behalf of the owners of plot No. 79-A and 79-B which plots are adjacent to plot No. 137 Faran Society belonging to Foundation Public School (Pvt) Limited. In the said notice it was averred that the defendants No. 4 & 5 had collusively exchanged plot No. 137 with a plot reserved for a park. This notice was duly replied by the counsel of the defendant No.5. It was submitted in the reply that the plot No. 137 was allotted for the construction of a school by the Parent Society with the approval of the Defendant No.4. That one Latif Ebrahim Jamal, the father of Abdul Aziz Jamal, who is the attorney of the plaintiff in the above suit, had in January 1975 filed a complaint with the then Chief Minister of Sindh regarding construction of school building on Plot No. 137 Faran Society, Karachi, being owner of the adjacent plot bearing No.134, Faran Society, Karachi. By order dated 15.1.1975 communicated to the Parent Society and the Defendant No. 5 by the Dy. Registrar of Cooperative Societies by letter dated 16.1.1975 the then Chief Minister had stayed the construction of the school building. However, by a subsequent order the then Chief Minister was pleased to vacate the stay. This order was communicated to both the defendant No. 5 and the Parent Society by the Assistant Registrar Cooperative Societies’ letter dated 20.3.1975. It was denied based upon the address in the title that the defendant Nos. 1, 10 & 13 are residents of Faran Society. It is stated that Plot No. 79-A Overseas Cooperative Housing Society claimed by the plaintiff No.1 was sub-leased by the Parent Society to one Fazal Mehmood on 20.1.1966 and was leased to him by the Parent Society on 27.3.1973. Plot No. 128 Faran Cooperative Housing Society Ltd, claimed by the plaintiff No. 2, was allotted to one Asia begum on 1.6.1962 and transferred to Aziza Begum on 2.8.1963. Building Plans were approved by the Karachi Development Authority on 14.3.1983. Plot No.131 Faran Cooperative Housing Society Ltd, claimed by the plaintiffs 3 and 4 was originally allotted to Mr.Ashique Hussain on 7.1.1963, transferred to Sajida Khatoon on 3.9.1964, then transferred to Azhar Hussain on 30.6.1979, to Mst.Shaheda Nasreen and others in 1985 and lastly to Mst. Halima Bai and Narium Bai on 20.11.1986. Plot No.123 Faran Cooperative Housing Society Ltd, claimed by the Plaintiff No. 5 was originally allotted to Saleha Khatoon on 9.6.1962, transferred to Mr. S.M. Zaid on 7.5.1963 then transferred to Miss.Saleem Sultana on 6.7.1964. Plot No.122/17 Faran Cooperative Housing Society Ltd, claimed by the plaintiff No.6 was originally allotted to Azam Jehan on 1.6.1962 was transferred to Delawarun Nisa on 25.4.1968 then transferred to Mr.M.Taki on 26.3.1973. Plot No.32/17 Faran Cooperative Housing Society Ltd, claimed by the Plaintiff No. 7 was originally allotted to Feroza Khatoon on 15.7.1959, transferred to Mr.Inayat Khan on 19.8.1976, then transferred to Noorun Nisa Anwar Ali on 26.1.1976 and then transferred to Roshan Bano on 5.6.1980. Plot No.124 Faran Cooperative Housing Society claimed by the plaintiff No. 8 was allotted to one S.M. Zahid on 7.1.1963 and was transferred to one S.M. Hassan on 7.5.1963. A sub-lease was executed in favor of the said S.M. Hassan by the Parent Society on 17.11.1966 and was transferred to the plaintiff on 2.3.1970. Plot No. 127 Faran Society claimed by the plaintiff No. 9 was initially allotted to one Mrs.Asia Khatoon on 1.6.1962, then transferred to G.S. Syed Ahmed on 11.2.1964. A sub lease was executed in favor of the said G.S. Syed Ahmed on 26.3.1985 and the plot was transferred to the plaintiff on 6.11.1985. Plot No. 79-B, Overseas Cooperative Housing Society Ltd, claimed by the plaintiff No. 10 was sub-leased to Mrs.Marium by the Parent Society on 20.1.1966, sub-leased on 27.3.1973 to Mrs. M.H. Ahmed. Plot No. 132 Faran Society claimed by plaintiff No.11 was allotted to one Kabeer Wahidy on 7.1.1963 and sub-licence was given by the Parent Society to one Sher Bano on 24.3.1971 and leased out to her by the Parent Society on 17.8.1982. Plot No. 133 Faran Society claimed by plaintiff No.12 was allotted to one Muzaffar Din Khan on 7.1.1963, subsequently transferred to one Mrs.Fareedunnisa on 1.7.1985 and lease was executed in her favor on 11.11.1985. Building completion plan was filed in KDA on 24.7.1986. Plot No.79 Overseas Cooperative Housing Society Ltd, was allotted to Mohammad Iqbaluddin. It was for the first time licensed by the Parent Society on 20.7.1988 to Mst. Hajra and others. NOC was obtained from Overseas Cooperative Housing Society for submission of builders plan for approval of KDA on 26.8.1967. Plot No.99 Faran Society claimed by plaintiff No.14 was allotted to one Shakir Farooqui on 1.6.1992 and the last transferee shown on the records of Faran Society is one Naeemul Arfeen in whose name mutation was effected on 2.12.1972, no sub licence or sub lease has been executed in respect of the said plot. Building Plans for plot No. 134 Faran Society claimed by the Attorney of the plaintiffs were approved on 1.6.1974. That the defendant No.5 has no authority to prepare any master plan of the area in question.  The defendant No.5 is a member of the Parent Society and it is the later who was allotted 1175 acres consisting of survey Nos.2468-9 in Survey Sheet No.37-P/1 Karachi by the Federal Government Agreement dated 14-1-1954. The master plan that has been approved by the Federal Government and the Defendant No.4 is the one filed by the Defendant No.4. Plot No. 137 Faran Society has always been and is an amenity plot reserved for the purposes of a school. Only its location was changed by the Parent Society with the approval of the Federal Government and the Defendant No.4. Approval was granted by the Governing Body of the defendant No.4 as far back as 18.9.1968.  The said plot had been reserved for a school building and the defendant No.5 was in the process of constructing a boundary wall to prevent encroachment. That the order passed by the then Chief Minister Sindh on the complaint of the father of the Attorney of the plaintiff was an ex-parte order. At the relevant time in 1975 even though the plot had been ear marked for a school, since it has not been leased out by Parent Soceity, school building plans had not been prepared. The Chief Minister on perusal of the record pertaining to plot No.137 Faran Society Karachi vacated the said stay order. That a meeting was arranged between the Administrator of the Foundation  Public School and some of the persons signing the representation who were informed that under the plan the width of the road was 40 ft. and not 15 ft. and if the owners of plot Nos.79-A, 79-B Overseas Cooperative Housing Society and the owner of plot No. 134 Faran Society had encroached upon this road they were the ones to blame and their encroachments should be removed to widen the road back to its original width of 40 ft. Receipt of the legal notice mentioned therein is admitted and it is stated that the notice was duly replied by the counsel of Foundation Public School (Pvt) Ltd. It is submitted that on or about 2.12.1997 workmen of the contractor engaged by the Foundation Public School (Pvt) Ltd. to level the ground of plot No. 137 Faran Society Karachi were carrying out filling works on the plot with quarry and mud when the said plot was raided by police mobiles of Bahadurabad P.S. and the workmen were taken away to the P.S. It was found out that some orders had been passed by the Hon’ble Chief Minister of Sindh against carrying out any works on the said plot. That the defendant No.1 and Foundation Public School (Pvt) Ltd. are within their lawful rights to raise the school building on plot No. 137 Faran Society Karachi which has been reserved for public amenity purposes (school) more than 30 years back. All the houses mentioned against the name of each plaintiff in the cause title of the suit were raised or constructed after the approval of the Master Plan. The approved lay out plan of the area provides for residential plots, commercial plots and plots for amenity use for parks, schools, hospitals, dispensaries, maternity homes, libraries, mosques, community halls and public buildings etc. The school is not being constructed on any street but will be constructed on Plot No. 137 Faran Society, Karachi which measures 6189 sq. yds. The road leading up to this plot is a 40 ft wide road. The representation dated 29.11.1995 and the exchange of legal notices are admitted and it is stated there has been no contact between the plaintiffs and the answering defendant or representative of Foundation Public School (Pvt) Ltd. The answering defendant or Foundation Public School (Pvt) Ltd. are not converting the amenity plot reserved for the school to a commercial plot. It is denied that any rights of easement of the plaintiffs are being violated or under threat of violation.  The agreement dated 14.1.1954 between the Governor General of Pakistan and the Parent Society in fact mandates that the Parent Society shall reserve suitable plots or portions of land in the scheme for public amenities such as parks, play grounds, schools, dispensaries, hospitals etc. The answering defendant and Foundation Public School (Pvt) Limited only intend to construct a school pursuant to the approved area scheme which approval was granted over 30 years ago. It is imperative that the schools be constructed and developed in areas reserved for them to prevent mushrooming of schools on plots not reserved for such purposes. No right of way of any of the plaintiffs will be obstructed or is under threat of obstruction. The running of a school under the name of Foundation Public School in a street near Sharea Faisal is not denied, it is however denied that the running of the school is a nuisance. Plot No. 137, Faran Society Karachi has been reserved for a school as far back as 1965. The plaintiffs have chosen to build and reside in their respective houses with full knowledge of the approved area scheme. The approved plan of the area earmarked plot No. 137 for the purpose of a school, such earmarking having been done over three decades ago and the plan filed by the plaintiffs is not the approved plan. It is further submitted that plot No. 137, Faran Society, Karachi can lawfully be used for a school and for no other purposes whatsoever. That the allotment of the said plot to Foundation Public School (Pvt) Ltd. is perfectly legal, so also the sub-lease granted to it by the Parent Society. Building Plans were first approved by the defendants No. 4, 7, & 5 in the name of the previous lessee of this plot namely Faran Education Society on 21.3.1990 and were subsequently renewed up to 18.8.1997. Since the validity of the said approval expired on 18.8.1997, Foundation Public School (Pvt) Ltd. has submitted new building plans for the school to the Defendant No. 7 which have been forwarded to it by the Defendant No.5 and the Parent Society. The receipt of such plans were acknowledged by the defendant No.7 by receipt dated 10.9.1997. It is submitted that on the representation of Foundation Public School Limited made on 20.1.1998, the earlier order of cancellation was recalled and a building plan has since been approved. That Plot No. 137, has been earmarked as a school over 30 years ago with the approval of both the Federal Government which is the owner of the land as well as the defendant No.4. In fact, the Governing Body of the defendant No.4 approved the relocation of the suit plot after inviting objections. Plot No. 137, Faran Society, has been reserved for a school and there is no question of violation of any vested rights of the plaintiffs. The plot No.137 was always reserved for public amenity use which includes use as a school never reserved for a park and was re-located in accordance with law and so earmarked as such question of changing does not arise. That daughter of the attorney of the plaintiffs herself studies at one of the Foundation Public Schools branches. Foundation Public School (Pvt) Ltd. Is entitled to approval of building plans in accordance with law. Building plans were previously approved in favor of Faran Education Society. Foundation Public School (Pvt) Ltd. has submitted its own plans which are in the process of approval. Certain property works such as quarry and mud filling were being done when the injunction order was served. The defendants have wrongly claimed that they came to know of the lease of the plot to defendant No.1 is ex-facie false as some of the plaintiffs had made a representation as far back as 29-11-1995. The Chief Minister was misled by the attorney of the plaintiffs and his father, since then the Chief Minister has rec-called the cancellation order after full inquiry into the facts of the case. The plaintiffs have no cause of action; each plaintiff has a separate cause of action, if any. It is not the plaintiff’s case that the suit is for abatement of public nuisance. All the plaintiffs have constructed their houses after the approval of the plan dated 4.2.1965. All the plaintiffs are bound by the terms of the said plan. Even though a 40ft wide road is sufficient for ingress and ingress to the suit plot the defendant No. 1 on her own behalf and on behalf of Foundation Public School (Pvt) Ltd. voluntarily submit that all students shall be required to disembark from their vehicles on the main road that precedes entry to the 40 ft. wide road that leads to Plot Nos. 79-A and 79-B Overseas Cooperative Housing Society Ltd. on one hand and plot No. 134 Faran Cooperative Housing Society Ltd. on the other hand. The suit is liable to be dismissed as the plaintiffs have failed to file the list of presumptive legal heirs required under order 7 rule 26 CPC.

Written statement on behalf of defendant No.5 also filed wherein the said defendant has adopted the written statement filed by defendant No.1.

The Defendant No.7 in his written statement states that Plot No.137, Faran Cooperative Housing Society was originally meant for park and was forwarded by KCHS for exchange on 23-6-1965 and the conversion of the plot from park to amenity was allowed by the KDA on 01-7-1965. The said exchange/conversion was incorporated in the lay out plan of the society. The converted plot No.137 was allotted to the Education Society for education purposes. The building plan of school was forwarded by KCHS Union and Faran Cooperative Housing Society and approved by the defendant No.7 on 22-3-1990 which was also renewed in 1996. Report in this regard was sent to the Chief Minister of Sindh, that the suit plot is located in the residential area. It is admitted that the construction of school on the disputed plot may affect residents of the area but it is stated that the KCHS Union allowed the exchanged/converted the suit/disputed plot for educational purposes and forwarded the proposal plans approved for school building. That recently revised plan of School building was submitted by defendant No.1, however construction work has stopped at site. It was denied that the said defendant No.7 had committed any illegality and that the plaintiffs have any cause of action against the said defendant. It is also stated that the plaintiff has not served the mandatory notice u/s 20-A of Sindh Building Control Ordinance, 1979 and that the suit is not maintainable.

 

3.       On 02-9-1999 following issues were framed;

          1.       Whether Kidney Hill area (KDA No.32 Falaknuma) is reserved as a public amenity area solely for the recreation of the people of Karachi as per Gazette Notification dated 18th November, 1966 published in the Gazette of the West Pakistan and never handed over to the Defendant No.10 (KCHSU) ?

          2.       Whether the Plot in suit is part of an area which has been reserved for park and cannot be used for any other purpose?

          3.       Whether the Plot No. 137 is situated within the Kidney Hill area reserved for park where the Defendant No. 1 is constructing the school? If so whether the construction is lawful?

          4.       Whether change of land use is allowed without complying with the requirement of Article 40, 52-A of KDA Order 5 of 1957 or any other relevant law?

          5.       Whether the Suit is maintainable?

          6.       Where was Plot No. 137, Faran Society originally located and where is it presently located? Was the change of location of Plot No. 137, Faran Society illegal?

          7.       What was the original use of plot No. 137, Faran Society and what is its user now?

          8.       Whether a school may be constructed on Plot No. 137, Faran Society situated next to Plot No. 79-A and 79-B, O.C.H. Society and Plot No. 134, Faran Society?

          9.       Whether the Plaintiffs have come to court with unclean hands? If so, to what effect?

          10.     To what relief, if any, the Plaintiffs are entitled?

          11.     Whether contesting Defendants have violated this Court’s Injunction Order dated 29.12.1998?

 

On 02-4-2001 following additional issues were adopted/framed:-

          1.       Whether the construction and/or running of the school on the impugned plot has violated of vested rights of the plaintiffs ?

          2.       Whether the construction and/or running of the school on the impugned plot will create a nuisance  to the plaintiffs ?

 

3.       Evidence of  Plaintiffs witness namely Abdul Aziz s/o Latif A. Jamal was recorded who filed his affidavit in evidence and produced photo copy of Gazette Notification as Ex.P-5/1, Nazir’s report along with map attached thereto as Ex.P-5/2 and P-5/2A, copy of notice dated 6-3-1971 as Ex. P-5/3, copy of reply of notice dated 6-3-1971 as Ex.P-5/4, document in respect of construction stayed by the Chief Minister as Ex.P-5/5, original slip of site plan as Ex.P-5/6, copy of letter dated 16-1-1975 issued by Section Officer (C-1) to Dy. Registrar Cooperative Societies Karachi as Ex.P-5/7, letter dated 29-1-1975 addressed by Honorary Secretary of Faran Cooperative Housing Society Ltd to Dy. Registrar Cooperative Housing Societies Karachi as Ex.P-5/8, certified copy of plaint of Suit No.795 of 1975 as Ex.P-5/9, true copy of counter affidavit filed by S.M. Salman in that Suit as Ex.P-5/10, true copy of application u/o VII rule 11 CPC as Ex.P-5/11, copy of objections to application u/o VII Rule 11 as Ex.P-5/12, true copy of application U/o XXIII rule 1 CPC as Ex.P-5/13. The witness also produced notification dated 12-9-1969 as Ex.P-5/14, letter dated 24-11-1995 sent by the residents to the Director Foundation Public School, Karachi as Ex.P-5/15, copy of legal notice dated 6-2-1996 as Ex.P-5/16 and another notice dated 25-9-1996 as Ex.P-5/17, receipts of fee charged as Ex.P-5/18 and as Ex.P-5/19 respectively, Nazir report as Ex.P-5/20, notice of Mr. Munir Malik, Advocate dated 27-10-1999 as Ex.P-5/21, lease deed by Government of Pakistan as Ex.P-5/22, letter dated 10-7-1968 as Ex.5/23, certified copy of statement of objections in respect of Scheme No.32 filed in C.P. No. D-1314 of 1990 as Ex.5/24, certified copy of memo of petition No.D-1314 of 1990 as Ex.5/25, certified copy of annexure-E to the memo of petition in C.P. No. D-1314 of 1990 as Ex.5/26, certified copy of C.MA No. 2966/90 in C.P. No.D-1314 of 1990 as Ex.5/27, certified copy of order dated 19-2-1991 passed in CP No. D-1314 of 1990 as Ex.5/28, certified copy of CMA No. 3387/91 in C.P. No. D-1314 of 1990 as Ex.5/29, certified copy of order dated 21.11.1991 passed in C.P. No. 1314 of 1990 as Ex.5/30. The witness was cross-examined by the learned counsel for defendants.

Evidence of PW-2 namely Abdul Rehman s/o Muhammad Ramzan was recorded who has filed his affidavit in evidence. He produced copy of letter No.8(32)-2/T.P.66/8685 written by the Chief Town Planner KDA to the Executive Engineer KDA Scheme No. 1, Karachi as Ex.6/1, original map attached to the letter as Ex.6/2, copy of letter dated 14.01.1971 written by the Executive Engineer KDA to the Town Planner as Ex.6/3, photo copy of agreement between the Governor General of Pakistan and KCHSU Limited as Ex.6/4, photo stat copy of lease as Ex.6/5, photo copy of documents mark “O/5” which includes the portion which was missing in that document as Ex.6/14, original letter dated 1-7-1965 issued by KDA as Ex.6/15.

Evidence of witness S.M.Salman Chishti s/o Shah Ghulam Hussain Chishti was also recorded who filed his affidavit in evidence and produced original letter dated 18-9-1968 issued by the Chief town Planner of KDA to the Executive Engineer KDA Scheme No.1 as Ex.P-7/1, its original enclosures as Ex.P-7/2, original letter dated 28-10-1970 as Ex.P-7/3. The witness was cross-examined.

Evidence of witness Syed Muhammad Shah s/o Syed Hussain Shah was recorded who produced photo stat copy of letter dated 18.9.1968 from Chief Town Planner addressed to Executive Engineer KDA Scheme as Ex. P-8/1, Photostat copy of letter dated 18.10.1970 written by Town Planner (Control) to Honorary Secretary Faran Cooperative Housing Society as Ex.P-8/2, Photostat copy of letter dated 14-1-1971 written by Executive Enginer KDA Scheme No. 24 to the Town Planner, KDA as Ex.P-8/3 and photo copy of plan as Ex.P-8/4, Drawing AD/32/3 along with its covering letter as Ex.P-8/5 and original letter dated 14-1-1971 along with original drawing as Ex.P-8/6, photo copy of Resolution No.169 of Governing Body of KDA as Ex.P-8/7, certified copy of it as Ex.P-8/8, certified true copy of counter affidavit of Muhammad Ishtiaq filed in C.P. No.583/1981 as Ex.P-8/9, guide map/site plan issued by KDA as Ex.P-8/10, lay out plan of KCHS Union of 1965 and 1973 as Ex.P-8/11-A and as Ex.P-8/11-B, record of some plots which were created in the scheme as Ex.P-8/12, as Ex.P-8/13 and as Ex.P-8/14. The witness was cross-examined.

Evidence of witness Muhamad Fahim s/o Muhammad Nasim was recorded who produced building plan in suit as as Ex. P-9/1.

Evidence of Defense witness Sultan Ahmed s/o Din Muhammad was recorded who produced photo copy of letter dated 13.6.1998 issued by KECHS to Foundation Public School as Ex.D-10/1.

Evidence of Defense witness Muhammad Waseem Qureshi s/o Muhammad Zafar Qureshi was recorded who produced certified copy of letter dated 29-06-1998 issued by KW&SB to Foundation Public School as Ex.D-11/1.

Evidence of Defense witness Ghulam Arif Khan s/o Ghulam  Sarwar Khan was recorded who produced letter dated 24.04.1996 as Ex.D-12/1, letter dated 10.11.1997 issued by KMC as Ex.D-12/2, copy of lay out plan of Blocks 3,7 & 8 of KCHS as Ex.D-12/3, revised lay out plan of Ahmed Ali Park, KDA Scheme No.32, formerly known as Kidney Hill Park as Ex.D-12/4, notice as Ex.D-12/5, attested copy of document marked O-9/ as Ex.D-12/6, attested copy of document mark O-9/3 as Ex. D-12/7. The defendant was cross-examined.

          Evidence of Mr.Shafi Muhammad s/o Late Haji Pir Muhammad Rahim ex-Nazir was recorded who received summons in this suit for giving evidence in respect of his report dated 14.10.1998 (Ex.P-5/2). He produced photo copy of reference as Ex.P-11/1, attested copies of two notices dated 1.12.1998 and 4.7.1996 as also the statement of Mr.Khalilur Rehman, Advocate as Exs.P-11/2, 3 and 4. He was cross-examined by Mr. Munir A. Malik, Advocate for the defendants No.1 & 8.

          Evidence of witness Syed Muhammad was recorded who produced mater plan of the city of Karachi as Ex. P/12.

Evidence of witness Muhammad Khalid Siddiqui s/o Muhammad Idrees Siddiqui was recorded who was cross-examined.

 

4.       Learned counsel for the plaintiffs has argued that the impugned plot was the part of Kidney Hill which was to be developed as a park also known as Ahmed Ali Park. That the same was never handed over to KCHSU who never had the authority to carve out the subject plot and allot the same to defendant No. 1& 8. It is further contended that without prejudiced to the same the reserved school plot cannot be leased out to private commercial school which is not registered with Charitable Institution under the Land Disposal Rule, 1971. In support of her contention she has referred to chronological dates and events as under;

On 7.6.1960 KDA approved notification of Kidney Hill in its governing body meeting.

On 14.9.1963 letter by KCHSU to KDA requesting for allotment of Kidney Hill.

On 5.10.1963 letter by KDA to KCHSU rejecting request for allotment of Kidney Hill.

On 3.9.1964 Even in the said letter KCHSU has admitted that Kidney Hill has been reserved as open space. In 1966 1st Notification published. Objections were raised by the different societies as well as parent society.

On 17.7.1967 letter by KCHSU requesting for construction of 40 ft wide road between the area of the Union and Kidney Hill of KDA.  In 1969 2nd Notification published on 5.9.1969 & 12.9.1969. 

On 20.5.1975 Governing Body meeting for amendment of plan just for swimming pool.

 On 20.11.1976 KDA replied to the said letter and refuse the request of Government of Pakistan by saying that Kidney Hill is an amenity area and cannot be allotted to PECHS. On 24.7.1979 letter by KDA to MOV that their claim is not correct. In 1980 letter from KMC to Government of Pakistan for expenses of KH.

On 8.2.1982  CMLA directions that Kidney Hill will remain park. On 4.2.1984 handing over possession of Kidney Hill to KMC.

On 4.2.1984  physical possession letter and refer the same to the record present on the file and as such contends that the same establishes that Kidney hill was never handed over to KCHSU. She has also contended that exchange took in 1965 and that the plaintiffs moved in the area with the knowledge of exchange.

She further contends that the documents do not support the case of exchange and permission of the school. It is further contended that the plaintiffs claim their vested rights on the basis of the notification as the plot No.137 does not exist by way of the notification plan. The said notification plan has not been produced by the defendants. She further claims that the scheme was a sanctioned scheme in view of Article 42 to 50 of KDA Order 5 of 1957 and Article 11 (6) of the said order. That without prejudiced to the earlier contention/s the procedure has to be followed as given under the Town Planning Act, 1915 and that in view of the restraint the exchange has to go through the process of public objections for change of purpose of land use and that at best the park plot was shifted to plot No.137. That no proof has come up that the plot was reserved for school. That according to Section 13 (6) of Sind People Local Council Rule, 1975 no plot reserved for amenity is liable to be leased and that public amenity cannot be granted without public auction under West Pakistan Municipal Committee (Control) Rules, 1960 and Section 45 (4) of Sindh Local Government Ordinance, 1979. That the material in respect of re-location establishes that the school was already in Faran Society and not in the Kidney Hill. The increase in area as such has also not been explained. That the plot having to be shift from central location to isolated place would not allow the use of Kidney Hill and in this regard no objections were invited from the public for the said shifting which require lay out plan and specifying the purpose of use. The same otherwise does not allow shifting in the middle of the residential area. The original ST-12 plot was reserved for park and shifting could have been only for that purpose only and not for school. That the Nazir report dated 14-10-1988 specifies that plot No.137 is located outside the Kidney Hill whereas the construction is being carried out within the Kidney Hill area and that the Nazir had appeared to give evidence before this Court that the plot is in his possession by order dated 21-11-1991 passed in C.P. No.1314/1990. That the map produced by the plaintiffs is the authentic lay out plan. That the earlier Suit bearing No. 705/1975 was withdrawn on the assurance given by Faran Cooperative Society that there is no proposal for construction of school. That the act/s of defendants is/are without legal sanctity having been made without inviting public objections. That in view of MLO 34 leases granted during the period 1971 to 1977 stood cancelled. That the periodical area of land dated 4-2-1965 prepared by KCHSU was not approved by the competent authority. The same as brought up before this court shows the road Shahra-e-Faisal whereas the same was having the name of Drigh Road at the relevant time and was named Shahra-e-Faisal after the death of King Shah Faisal of Saudi Arabia in March, 1975. That the nature of nuisance is private and public both. That KDA had approved notification of Kidney Hill in its governing body meeting. That by letter of KCHSU to KDA request is present for allotment of Kidney Hill and by letter of KDA to KCHSU rejection is present for allotment of Kidney Hill. Even in the said letter KCHSU has admitted that Kidney Hill has been reserved as open space. That to the 1st notification published objections were raised by the different societies as well as parent society. That by letter KCHSU requested for construction of 40 ft wide road between the area of Union and Kidney Hill of KDA.  That the 2nd Notification was published on 5.9.1969 & 12.9.1969 to which no objections were raised, so in view of Article 11 (6) of KDA Order it is not just a proposed scheme but the same is a sanctioned scheme. The Governing Body meeting for amendment of plan was just for swimming pool. Letter dated 3.9.1976 forwarded to KDA. KDA replied to the said letter and refuse the request of Government of Pakistan by saying that Kidney Hill is an amenity area and cannot be allotted to PECHS. By letter dated 8.2.1982 CMLA directed that Kidney Hill will remain park. Letter dated 4.2.1984 handing over possession of Kidney Hill to KMC and physical possession letter establishes that Kidney hill was never handed over to KCHSU. She has also denied that that exchange took in 1965 and that the plaintiffs moved in the area with the knowledge of exchange. She also relies upon the doctrine of Situs and the location along with the road area available. She has also stressed upon rights of the neighbors under the doctrine Haqq-al-Jarr and referred to various Islamic books in this regard.

Learned Counsel for the plaintiff has relied upon the following authorities; In respect to Modifications in Development Scheme requiring objections to be heard PLD 1994 S.C page 512, 1991 SCMR page 483, PLD 1972 S.C page 279. For scheme sanctioned 1990 SCMR page 521. Applicability of MLO 34 PLD 1997 Kar. page 450. Natural Justice NLR 1990 Civil page 50, 1990 CLC page 448, PLD 1997 Karachi page 541, PLD 1998 Karachi page 307, 1997 SCMR page 1543, 1998 SCMR page 2745. Nature of Amenity-Public or Private AIR 1991 S.C 1902, Everything void if Foundation is void PLD 1958 S.C page 104, Suit withdrawal having different cause of action 1990 MLD page 309, PLD 1970 S.C page 63, AIR 1959 Cal page 715, AIR 1970 S.C page 987, Mis - Description of property S.C. order dated 17.12.1995 passed by Mr.Saleem Akhtar J concerning contempt notice against wrong building (in Abdul Ali & 26 others’ case), 1989 MLD page 4107, AIR 1973 Allahabad page 116.

          Learned counsel for defendant Nos. 1 & 8 on the other hand contends that the subject scheme was abandoned under Article 49 of the KDA order and the rights acquired under Article 52-A comes only when the said scheme is sanctioned through the publication in the Official Gazette which is not available in the present case. It is further contended that the area of Kidney Hill only was reserved for recreational park. However there is no scheme having the force of law. It is further contended that the re-siting was made on the recommendation of the KDA Sub-Committee constituted to hear the objections by its recommendation and the said recommendation was approved by the governing body of KDA by its Resolution No.1 of 1968 and the proposed Falaknuma scheme was abandoned in 1954 and the area was handed over to KMC by the decision taken by the Federal Government by the concerned authorities. The subject plot was never in possession of KMC because it was not part of Kidney Hill and not reserved for park. It is further contended that the defendants did not know that plot of Kidney Hill was in possession of Nazir and the construction was being raised for additional road leading to plot No.137 Faran Society. That the plaintiffs on account of filing of Suit No.795/1975 were in knowledge of the conversion and as such their claim is barred by limitation and that the matter is of public nuisance and not private nuisance for which permission is required from the office of Advocate General. That the location of plot No. 137 has wrongly been shown by the plaintiffs. That the documents in the matter do not have the force of law and are merely guides and do not necessarily reflect of the changes. That the plaintiffs have with-held the title of plots deliberately in order to conceal the location and that the plaintiffs are not having completion plan. It is further contended that inconvenience to the park for traffic congestion is more than contributing to school. It is also contended that the terms of law does not create a vested right and that a school lawfully created at the designated place is a vital part of community. The relied upon authorities of the plaintiff Naz Shaukat vs. Yasmin Minhas (1992 CLC 2540) and Ardeshir Cowasjee vs. Mohammad Naqi Nawab (PLD1993 Kar 631) are not applicable in the present case being distinguishable.

                    Learned counsel for defendant Nos.2 & 6 have argued in accordance with their stand taken in the written statement, learned Add. A. G. has however further submitted that on account of the required permission under Sec.91 of C.P.C. the suit is not maintainable as the matter pertains to public nuisance.

         

5.       Before I continue any further after having heard the learned counsels and gone through the record, in exercise of the available powers, it is prefer to recast the issues for convenience of presentation and understating and also give my findings thereto which cover the controversy/issues framed, where after the reasons/discussion are/is given;

1.   Whether the Suit is maintainable? …………..Affirmative

2.   Whether a school and more so a private school on the subject land/plot is available to the defendants? ….Negative

3.   Whether the establishment of a school on the subject land/plot is a nuisance to the plaintiff? ……………………...Affirmative

4.   Whether the plaintiffs are entitled to cancellation of lease favoring the defendant No.1, declaration and prohibitory injunction against the defendants?......................................... Affirmative

5.   What should the decree be? ………………….Suit Decreed as prayed.

 

Issue No.1; Whether the Suit is maintainable?

          The defendants have taken the stand that the plaintiff has come to this court with unclean hands, the claim is hit by latches and the suit is barred for want of permission form the office of the Advocate General as to public nuisance required under Sec.91 of C.P.C., however nothing has been found in support to allegation of unclean hands. As to matter of latches it is observed that an element of constant resistance was present, the earlier suit was withdrawn with the permission to file afresh on the understanding given that no school is not being considered as such the matter of latches is not found present. The matter of public nuisance is dealt hereunder by issue No.3. This issue as such is decided in affirmative.

 

Issue No.2; Whether a school and more so a private school on the subject land/plot is available to the defendants?

It has come on record that the subject land said to be bearing Plot No.137, Faran Society was re-sighted/relocated on the present location admittedly the same was not present originally. The area/locality is of residential nature. Nothing has come on record that the present location was acquired after obtaining objections of general public/owners of the locality/area in this regard, on the other hand it has also come on record that constant resistance in this regard was present. The matter of objections as brought forward are in respect to the earlier location whereas for the present location said to have been made out on account of objection to the earlier location has remained without any such exercise. Even the exercise of considering the objection/s once made establish that the defendants had treated the said exercise as required and mandatory. The contesting defendants have taken a shelter that as the subject area i.e. KDA Scheme No.32 is not a sectioned scheme as envisaged under Article 50 of the KDA Order as such the Article 52-A of the said order is not attracted. I am afraid such a an argument cannot be appreciated as the same is going to lead to a situation of chaos and disturbance for the reason that irrespective to the strict operation of law in precedence and rights given therein, the beneficial protections are always available under the fundamental rights as guaranteed by the constitution and principles of natural justice enshrined therein which is the supreme law. The said protections cannot be taken away by failure of the executive to do the needful prerequisites. Evan otherwise it was not the duty of the plaintiffs to obtain the said sanction. The enjoyment of residential occupants by the local residents can only be taken away in accordance with the principles as available in law and not on account of failure of executive to do the requisite on their part. The status of Karachi Development Authority itself along with its constant involvement baring from the record does not invite an out-rightly determination that said scheme was not sanctioned.

The present acquisition of the subject land/plot for establishment of a private school of commercial nature is also under question based upon the provisions of Town Planning Act, 1915, Land Disposal Rules, 1971, West Pakistan Municipal Committee (Contract) Rules, 1960, Sindh Local Government Ordinance 1979, Sindh People Local Councils Rule 1975, and KDA Order 5 of 1957. The same as such cannot be entertained as the present use comes more within the ambit of commercial activity then for the purpose which is available to a charitable institution, as such a disturbance to the status of amenity. On account of want of required details I have deliberately restrained myself in this regard from ordering any inquiry as to the strange transfer whereby the Faran Educational Society has very strangely given preference to surrender the lease in order to effect the transfer of the subject plot to defendant No.8 in complete disregard to the duty of a charitable nature with a very simple and conveniently remark of “not interested” which otherwise is/was liable to dealt by change of management of the said education society and or in an extreme case transfer to another charitable institution. The subject land for public benefit has to so utilized for the said purpose and not otherwise more so especially for a commercial purpose of private benefit. The discussion under issue No. 4 is also attracted, however the same is not repeated for the sake of brevity. The findings to this discussion as such are determined as negative.

 

Issue No.3; Whether the establishment of a school on the subject land/plot is a nuisance to the plaintiff?

          Although not much of a need is present for leading evidence to the effect that a school is source of inconvenience to the residents of the locality, however in the present case evidence of the witness is present in this regard establishing that the school is a source of nuisance on account of disturbance to the residential nature of the said area. Learned counsel for the defendant in this arguments based upon the cross examination has referred to comparison of nuisance nature of the park to a school, the same is however restricted to the element of parking only. In my humble understanding the same is not however only of the many factor, the same is not available in the present circumstances as it has not come on record that there shall be a gate of the park at the relevant place and that no space of parking is/will be available and provided inside the park in this regard. The distinction as is being called upon by the contesting defendants as to private and public nuisance in the present case is also not found available on account of location and resulting effects which amount to both the nuisances. This issue as such is decided as affirmative.

 

Issue No.4; Whether the plaintiffs are entitled to cancellation of lease favoring the defendant No.1, declaration and prohibitory injunction against the defendants?

Considering the discussion and findings under the issue Nos.1 to 3 as given above along with the element of the subject plot being found created inside the Kidney Hill on account of its isolated location. The record establishes that the same is found to be not having any surrounding plot of the defendant society (The butting and bounding of the alleged plot No.137 is found to have on two sides the Kidney Hill one side by Overseas Cooperative Housing Society and only one side touching end of access road in between and portions of end boundary of plot Nos.79-B, 134 and the corner of plot No.135) The said alleged plot No.137 is out of line to the present plots of the defendant society. It cannot be imagined that the area available to the Kidney Hill was present along with this sessile, solitary and specific intrusion available for any other purpose, as such I have no hesitation in coming to the conclusion that the said plot No.137 is having an artificial planted/created origin and nature within the Kidney Hill/Ahmed Ali Park. The Kidney Hill/Ahmed Ali Park admitted being an amenity for the specific purpose of park/recreational area the findings to issue is found in affirmative.

 

Issue No.5; What should the decree be?

As a result of the discussions and findings as fore-given the prayers of the plaint (a) to (d) and (f) stands allowed. The suit is decreed accordingly favoring the plaintiffs for the said prayers along with costs of the proceedings.

The office to prepare a decree accordingly.

Judge