ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No.D-5234 of 2013

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Date Order with signature of Judge

1.For Katcha Peshi.

2.For hearing of CMA No.20200/2014.

3.For hearing of CMA No.7866/2014.

4.For hearing of CMA No.32243/2013.

Present:-

1) Mr. Justice Syed Hasan Azhar Rizvi

2) Mr. Justice Hasan Feroz

Date of hearing: 27.05.2015:

Mr. Arif Khan, Advocate for the Petitioners.

Mr. Altamash F. Arab, Advocate for Respondents No.1 and 6.

Mr. Saeed A. Memon, learned Standing Counsel.

Mr. Miran Mohammad Shah, learned AAG Sindh a/w. Mr. Asadullah Lashari, Advocate for State.

Mr. Mohammad Ehsan, Advocate for Respondent No.2.

Mr. Anwer Ali Shah, Advocate for Respondent/ SBCA.

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SYED HASAN AZHAR RIZVI, J:- Through this Constitutional petition, filed by the petitioners, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayers:-

“a) To direct the official respondent to remove Mobile Tower and all sign/billboards installed in the Building known as Aamir Trade Centre constructed on Plot No.233/1, Shahrah-e-Qaideen, Allahwala Chowrangi, Block 2, P.E.C.H.S., Karachi. On failure to do so, the Nazir of this Hon'ble Court may be authorized to implement the judgment, orders of this Hon'ble Court.

b) To grant injunction restraining the respondent No.1 from further installation of any sign boards, billboard in Aamir Trade Centre and carry out further works thereon and to let out the same on rent.

c) To grant further relief which this Hon'ble Court may deem fit under the circumstances of the case.

2. The grievance of the petitioner is that the respondent No.1 and 2 have illegally got constructed a Tower for erection/installations of heavy Mobile Tower as well as the respondent No.1 got constructed big billboards measuring 40’ x 20’ square feet or thereabouts, at roof top of Aamir Trade Centre without permission of the shop/office holder of the Aamir Trade Centre. The respondent No.1 in the month of October, 2013 got illegally erected four iron made billboard front side of the Aamir Trade Centre as well as big billboard 40’ x 10’ square feet or thereabouts in spite of objections of the office/shop holder of the Aamir Trade Centre on the claiming that he is owner of the Aamir Trade Centre, therefore, in entitled to do whatever he wants to although he is not owner of the Aamir Trade Centre after selling its units to the respective buyers. The Mobile Towner is about 1.5 tons affixed on roof top of the Aamir Trade Centre after digging 5 inches whereas the building Aamir Trade Centre was constructed in 1980s. This Mobile Towner as well as big billboard erected on the roof of the offices No.401 & 405 thereby the respondent No.1 has put tremendous/ammine load on the building which may cause collapse the foundation of the building.

3. We have heard the arguments of learned counsel for the petitioners, learned counsel for the respondents and perused the material available on record.

4. Mr. Arif Khan, learned counsel or the petitioners vehemently argued that the respondents have affixed five square-shape billboards outside many offices which covering from first to fourth floors, which action of the respondents not only illegal, ultra vires, null and void but against the principles of natural justice. He further argued that the billboards in question disturb the ventilation of the Aamir Trade Centre and its units and the some covers the flow of air of windows. He also argued that the waves of the Mobile Telephone Tower are hazardous and most dangerous for human being and effect eyes, nose, throat, hearing, brain, hear of the human being and nervous system of human body and make the human being patients of cancer, E.N.T., heart etc. He urged that it shall be so difficult for the petitioners and other occupants of the Aamir Trade Centre to live peacefully in their offices/shops/flats free from noise, disturbance and tension and as such the respondent No.1 has created the nuisance and the said activities being undertaken by him are injurious to comfort enjoyment of the petitioners and other occupants of the Aamir Trade Centre.

5. Learned counsel for the petitioners further submitted that the respondent No.1 deprive the petitioners from their valuable rights and peaceful and comfortable enjoyments of their offices/shops/flats which injuriously affects the safety, health or morals of the public or works. He also submitted that even otherwise, the harmful and hazardous activities cannot be allowed to be carried out in the vicinity, thus the respondents not only infringed the fundamental/public rights but also crated nuisance. He urged that on being complete disappointed from the conduct of the respondent No.1, the petitioner were constrained to lodge a complaint to the respondents No.3 to 5 but no response was received on their behalf. He also urged that in case of falling down any billboard and any mishap be happened, it cause causality/ fatality serious loss to the human being or their properties. Therefore, the respondent No.1 miserably violated the rules and regulations of the respondents No.3 and 4 just to wrongfully gain to get monetary benefits at the cost of public right. He submits that the official respondents are duty bound to perform their statutory duty but they failed to do so, despite complaint, hence the petitioners knock the door of this Hon'ble Court for justice. Learned counsel while concluding his arguments has pointed out that several other petitioner involving the similar controversy are pending adjudication before this Court.

6. On the other hand, Mr. Altamash Faisal Arab, learned counsel for the respondents No.1 and 6, at the very outset, attacked the maintainability of the instant petition and stated that ad-interim order has been obtained by the learned counsel for the petitioner by concealing the true facts. He has contended that petition is bad on account of mis-joinder and non-joinder of necessary parties and in absence of necessary parties effectual and complete adjudication on the questions involved in the matter cannot be adjudicated properly in accordance with law. He has also contended that petitioners has deliberately suppressed the material facts with regard to death of respondent No.1 (Mohammad Ahmed Farooqui) who died long ago and after the death of respondent No.1 his attorney Mohammad Rafiq Alamgir has ceased to be the attorney of the deceased owner of the property in question and as such no alleged action can be taken against him. He further argued that the instant petition hit by laches as it seeks to challenge the legality of installation of a BTS Towner affixed on the roof of the subject property over 17 years ago, which is a past and closed transaction and as such the petition is liable to be dismissed on this score alone.

7. Learned counsel for the respondents No.1 and 6, besides his arguments on legal plane, has submitted that respondent No.1 has not been in possession of any portion of the subject property since the expiry of Mahmood Ahmed Farooqui, who executed sub-leases in respect of different portions of the subject property. He, however, clarified that the wife of Mohammad Rafique Alamgir is the owner and in possession of the 5^th floor of the subject property. He urged that the petitioner have intentionally failed to attach with petition the relevant title documents showing their right and interest in the subject property. He submitted that the BTS Tower is installed on the water tank on top of the rooftop and was installed after fulfilling all requirements and formalities over 17 years ago and so far as the billboard is concerned, same is also legally installed on the terrace of the 5^th floor and not on the roof top after obtaining permission of the concerned authority, which does not interfere with the enjoyment the other owners of their respective portions. He also submitted that the structural integrity of all the billboards has been verified by duly licensed and recognized civil engineers and are being maintained in good condition. He vehemently denied that the impugned actions done or purported to be done by the respondents are malafide or otherwise unlawful. The official respondents have acted in accordance with law and applicable policies. He, therefore, prayed for dismissal of instant petition with heavy cost.

8. Mr. Anwer Ali Shah, learned counsel for Sindh Building Control Authority has reiterated the same arguments as narrated in the comments filed by Deputy Director, Jamshed Town, SBCA, Karachi. He stated that it is a case of old construction completed and occupied since decades and installation of Cell Phone Antenna thereon. He further submitted that at present there is no fresh construction in violation of approved completion plan, however, as far the issue of Antenna is concerned, the same dealt with by the Committee Constituted by the Government of Sindh. He further urged that several other petitions involving the same issue are pending adjudication before another bench of this Court. He requests that the outcome of that petitions would also follow in the case of present petitioners. He, however, submitted that since there is no fresh construction, the SBCA has not granted any type of approval of installation of Cell Phone Antenna, therefore, the issue involved may be decided at its own merits.

9. We have given due consideration to the arguments advanced by the learned counsel for the parties and perused the available material.

10. It appears from the record that this petition has been filed by the petitioners by impleading official respondents as respondents No.3 to 5 and private parties i.e. respondents No.1 and 2. The respondent No.1 against whom the main relief is sought has been impleading through attorney Mohammad Rafiq Alamgir. During proceedings it has come on record that respondent No.1 Mahmood Ahmed Farooqui had died long ago. Therefore, petition cannot lie against a dead person as the authority of the attorney will automatically vanish away at the time when the executant of such power of attorney dies. In the case in hand, not only the executant had died but the attorney has also died. It is settled law that a petition cannot lie against a dead person, as it is not an ordinary civil suit wherein after the death of any party his/ her legal heirs to be joined as party to the proceedings. The instant petition has been filed without impleading the necessary parties and in their absence questions involved in the matter cannot be adjudicated properly in accordance with law. Therefore, in our humble view, the petition is bad on account of mis-joinder and non-joinder of necessary parties, thus liable to be dismissed on technical ground.

11. With regard to the issue involved in the instant case, we may observe that we are not deciding the controversy agitated through instant petition, as several other petitions involving identical and similar controversy are pending before this Court, which will be heard and decided on its own merit. However, it may not be out of place to mention here that it has come to know through parawise comments filed by respondent No.3 Environmental Protection Agency (EPA) that Review BTS Policy is still pending with Local Government Department, Government of Sindh conducted many meeting and comments of Sindh Environmental Protection Agency on revised policy were not addressed accordingly in the review policy. It is further stated that Local Government Department is a focal department and he has to be notified the revised BTS Policy with the consent of all stakeholders.

12. In view of what has been discussed above, we dismiss this petition being barred by misjoinder and non-joinder of necessary party as it has been filed against a dead person. However, the official respondents are directed to act in accordance with law after the outcome of pending petitions relating to the same issue, if the petitioners approach to them.

13. Aforesaid are the reasons for short order dated 27.05.2015 through which this petition was dismissed alongwith listed applications.

JUDGE

JUDGE

Karachi:

Dated:08.08.2015.