QASIMABAD ENTERPRISES Versus PROVINCE OF SINDH

ORDER

1. C.M.A. No. 39/1997.

2. Mr. Jhamat Jethanand, Advocate for the respondents Nos. 8 to 11 in the contempt application has filed this application seeking a restraint order against the respondent No.2 pertaining to the demolition of construction raised on Plots Nos. 15 to 18. He is not a party in the main suit although his grievance is that the appellant in spite of knowledge that the plot has been allotted to him has not made him party. Mr. Jhamat Jethanand, Advocate has drawn my attention to the possession order. He has not filed allotment order issued in his favour, According to him no lease has been granted so far. According to him he does not have approved plan. In relation to the plan he said that he has given plan and since sixty days have passed after the plan was given it has not been approved by respondent No.2, therefore, it shall be deemed to have been approved. According to him he has good prima facie case.

3. Mr. Hassan Mehmood Baig, learned counsel for the appellant in reply to his application stated that the notice which has been annexed by Mr. Jhamat Jethanand, Advocate with the C.M.A. No.38/1997 has not been issued by the respondent No.2 on the basis of the orders of this Court dated 27‑2‑1997. The notice in its body refers to earlier notice dated 8‑12‑1996. In my orders dated 27‑2‑1997 1 had ordered H.D.A. for the sanctity of the orders of the Court dated 18‑7‑1995 to be maintained. I have not issued notice to the other contemners. I, A therefore, find that since no application has been given by Mr. Jhamat Jethanand, Advocate for being impleaded as a party, therefore, application under Order XXXIX, rules 1 and 2, C.P.C. is without any merit and is dismissed as such.

4. CMA. No. 41/1997

5. This application has been filed by Khalid Abdul Haleem shown at Serial No.17 in the contempt of Court proceedings for being impleaded as a party. On my enquiry the learned counsel Mr. Partab Rai appearing for the applicant stated that he has not filed such application in the trial Court. This is a Miscellaneous Appeal arising out of rejection of application under Order 39, Rules 1 and 2, C.P.C. He has not taken any efforts for being impleaded as party in the trial S Court. I am afraid that at the appellate stage and that too in the interlocutory application it would not be possible to implead him as a party. Consequently, therefore, C.M.A. No. 41/1997 is dismissed. is application has been filed by Khalid Abdul Haleem for grant of stay in terms of Order 39, Rules 1 and 2, C.P.C. read with sections 94 and 151, C.P.C. The case of the applicant set forth in this application is that he is an allottee of the plot and the allotment order is annexed by him. The contents of allotment orders are reproduced:‑‑

6. "In accordance with the orders of the Hon'ble Chief Minister Sindh conveyed to HDA by the Secretary, Housing, Town Planning and Environment Department Government of Sindh, vide No.50‑II(KDA) 6‑22/95 dated 15‑3‑1995 communicated by Secretary, HDA, vide No.HDA/Dev/CMD/1238/1995, dated 26‑3‑1995 RCC Plot No.36 measuring 240 sq. yards in North Qasimabad, HDA Housing Scheme No. II, is hereby allotted to Mr. Khalid Abdul Haleem s/o Imdad Ali Surahyo (NIC No.451‑59‑217003) r/o H.No. 180, Unit No.7/D, Latifabad, Hyderabad, on usual terms and conditions. "

7. On the basis of this allotment order the applicant contended that he has lease deed in his favour he has been delivered the possession of the plot and he had submitted plan for approval of construction and since the approval of the plan has not been given within sixty days, therefore, in view of section 21(3) of Building Control Ordinance, 1979 read with section 35 of the Local Government Ordinance, 1979 the plan shall be deemed to have been approved. On my enquiry whether the Chief Minister has any authority to allot the plots as has been done either under the H.D.A. Act stated that the H.D.A. Act does‑not authorise the Chief Minister to allot the plots, however, according to him Sindh Disposal of Plots Ordinance, 1980 confers such authority on the Chief Minister to allot the plots. The learned counsel for the applicant stated that the Chief Minister has the authority being the Chief Executive of the Province to pass any such order. I am afraid I cannot agree to such argument. In our country there is a written Constitution which allots specific field of activity to the executive and particularly in this country there is Government by laws and not by men which means every action of the executive must be backed by law and if the act of the executive is not backed by law then the assurance given in Article 4 of the situation which dictates that to be dealt with in accordance with law shall be inalienable right of every clitizen would become meaningless.

8. Under section 21(3) which only adopts the bye‑laws framed by the council till such time the regulations are framed. It does not adopt the Act itself i.e. the Sindh Local Government Ordinance, 1979, therefore, reference to section 35 of the Sindh Local Government Ordinance is inapt Syed Masood Ali, learned counsel for H.D.A. invited my attention to section 2 of Sindh Building Control Ordinance, 1979 which reads as follows:

9. "2. Non‑application of a law.,‑‑‑ Nothing contained in any other law for the time being in force shall apply to any matter regulated by this Ordinance."

10. On the basis of this section his contention that Sindh Local Government Ordinance; 1979 shall not be applicable has force.

11. Admittedly the plan of the application was unapproved and was returned to him vide letter dated 28‑2‑1997 Syed Masood Ali, Advocate again invited my attention to section 16 of the Building Control Ordinance, 1979 which provides for the right of the appeal to the Government on relation to non approval of building plan. My attention has been invited to a judgment reported as Mst. Hawa Bai v. Haji Ahmad and another 1987 CLC 558 in which it has been held that the construction can only be held after obtaining approved plan from the Building Control Authority and the Court would not permit construction not duly approved by authority because that such permission would amount to by itself mandatory requirement of law of obtaining approved plan before raising construction and clothe it legitimacy under the orders of the Court. This judgment has been delivered by my Lord Mr. Justice Saleem Akhtar (as his Lordship then was) now a Judge of the Hon'ble Supreme Court. Even otherwise I also agree with such principle because if the construction is raised D without any approved plan it will not only create hurdles and it will increase the menace of encroachment of lanes and streets etc. Even otherwise it is not mandatory that the plan must be approved within two months.

12. It is further unfortunate that H.D.A. which is created under the law allowed its authority to be misused by the executive who had no such powers. Government functioning are not bound to obey illegal orders of their superiors. H.D.A. has no doubt created hurdles for the applicant is submitting to the illegal orders of Chief Executive but the remedy which is sought by the applicant E before me would not be available. He may however, take appropriate steps against the H.D.A. for passing the illegal acts which were not warranted under the law. Consequently, therefore, I find that the applicant has no prima facie case neither inconvenience in such eventuality nor injury will be greater to him because as slated above his construction on the plot is even otherwise contrary to law. Consequently, therefore, CMA No.42/97 is dismissed.

13. A.A./Q‑9/K Application dismissed.