IRSHAD Versus KARACHI DEVELOPMENT AUTHORITY

NASIR ASLAM ZAHID, J.‑‑‑ In this Constitutional petition filed on 18‑6‑1990, the petitioners have challenged the amalgamation of Plots Nos. BC 14, 15 and 16 into one plot, which is now jointly owned by respondents Nos. 3, 4, 5 and 6 and the construction on the plots in excess of 30 feet in height and also in excess of ground plus two floors. The following prayers have been made in this Constitution petition.

"It is, therefore, prayed in the circumstances in the interest of justice that this Honourable Court may be pleased to issue an appropriate Writ/Order/direction against the respondents Nos.1 and 2 and be pleased to:

(a) Direct respondents Nos. 1 to 6 to stop construction on Plot No. BC‑14 as amalgamated and originally numbered BC‑14, BC‑15 and BC‑16 in Block 5, K.D.A. Scheme No.5, Kehkashan Karachi.

(b) Prohibit the respondents Nos. 1 to 6 from (i) constructing or permitting construction directly or indirectly or by act or omission beyond height of 30 feet and without leaving of compulsory open space as per regulations around Plots Nos. BC‑14, BC‑15 and BC‑16 as originally marked (as prescribed on page 24 of Brochure (Annexure `B' hereto) providing among others for leaving 7‑1/2 feet on either side and arcade of 10 feet and further in violation of "standard plan" of respondents Nos. 1 and 2 (Annexure `K' hereto) and (ii) from converting the Plots Nos. BC‑14, BC‑15 and BC‑16 (as originally marked) as amalgamated, to a commercial purpose as a single block of condominium/construction without leaving compulsory open space on all sides as prescribed by the Rules and Regulations and brochure (Annexure `B' hereto page 24 thereof).

(c) Restrain respondents Nos. 3 to 6 and all persons claiming through or under them from carrying out any construction whatsoever on the said Plots Nos. BC‑14, BC‑15 and BC‑16, including installing sanitary, electrical and all other fittings.

(d) Direct respondents Nos. i and 2 to take all effective and necessary steps/actions to stop all further construction whatsoever including sanitary, electrical and all other fittings by respondents Nos.3 to 6 or any else claiming through them in excess of 30 feet height and further in violation of the standard plan (Annexure `L') and brochure (Annexure `B').

(e) Direct Respondents Nos. 1 to 6 to demolish all illegal construction on the aforesaid Plots Nos. BC‑14, BC‑15 and BC‑16 as originally numbered, forthwith.

(f) Restrain Respondents Nos.1 and 2 from issuing any completion certificate or occupancy certificate in favour of any one in respect of the aforementioned plots and constructions thereon.

(g) Prohibit respondents Nos. 3 to 6. and all persons claiming through and under them from parting with possession, transferring, selling, leasing or assigning or allowing any person to occupy or creating any third party rights in any portion of the aforementioned Plots Nos. BC‑14, BC‑15 and BC‑16 or any construction thereon.

(h) Cancel the plan of proposed construction (Annexure H hereto) and declare the same as illegal and without lawful authority and as such not valid for construction.

(i) Prohibit and restrain the respondents Nos. 1 to 6 not to construct or allow construction on Plots Nos. BC‑14, BC‑15 and BC‑16 (as originally numbered) save strictly in accordance and in conformity with the `standard plan' prescribed by K.D.A. and K.B.C.A. as per Annexure `L' hereto, restricting the maximum height of the building to 30 feet and leaving of open space of 7‑1/2 feet on first and second floors and leaving of arcade of 10 feet on ground floor‑

(j) Declare that the proposed construction on newly‑amalgamated Plots Nos. BC‑14, BC‑15 and BC‑16 as per above plan (Annexure `I' hereto) ‑ is without lawful authority and of no legal effect.

(k) Declare that the respondents Nos.1 to 6 cannot convert Plots Nos. BC 14, BC‑15 and BC‑16 as amalgamated to a commercial purpose as proposed and that likewise they cannot convert lawn No.ST‑18 as shown in the plan of Block No.5 of K.DA. Scheme No.5 (Annexure `A' hereto) to either a parking space or pathway as proposed or to any other use except as a common lawn in violation of the law, the statutory rules, the brochure (Annexure `B' hereto) and the vested rights of the petitioners and in disregard of their fundamental rights as guaranteed in the Constitution."'

(l) Prohibit respondent No.2 from entertaining or approving or permitting any plan for construction on Plots Nos. BC‑14, BC;‑15 and BC‑16 (as originally numbered) as amalgamated save in accordance with `standard plan' (Annexure `K' hereto) and brochure (Annexure `B' hereto)."

2. It has been pointed out that prior to the filing of the present Constitution petition, the petitioners had filed Constitution Petition No.111 of 1989 and a similar petition was filed by other persons being Petition No.157 of 1989. These petitions were dismissed as a statement had been made on behalf of K.D.A. that the plans for the construction of buildings on the said plots had been cancelled/not approved. The previous petitions were disposed of by order, dated 5‑4‑1990. Thereafter, it appears that some plans were filed by the private respondents for construction of buildings on the same plots which were approved by K.B.CA. and as such the present Constitution petition was filed claiming the aforesaid reliefs.

1t is pertinent to observe here that, prior to the filing of the present Constitutional petition, three separate Suits Nos.442/90, 443/90 and 444/90 were filed by the petitioners against the private respondents and later on K.D.A. and K.B.C.A. were also impleaded as defendants. In those suits, applications had been filed for interim injunction but the same were dismissed. Being aggrieved, petitioners filed High Court Appeals where an undertaking was given on behalf of the private respondents that they would not raise construction in excess of 40 feet and would not raise any further construction. This undertaking was given on behalf of the private respondents subject to their rights in the suits. The said undertaking was accepted in the High Court Appeals and the said Appeals were disposed of on 28‑6‑1991. From the perusal of the order disposing of the said High Court Appeals, it follows that such orders were passed with consent of the petitioners and the private respondents.

3. The prayers made in the amended plaints filed in the aforesaid suits are as follows:

"The plaintiffs therefore pray for declaration that:

(a) That defendants Nos. 1. and 2 are not entitled to construct a multi-storeyed building on their plot in conjunction with the owners of the other two plots namely BC‑1 and BC‑1 as if the same have been amalgamated.

(b) The defendants Nos. 1 and 2 arc not entitled to construct any building in excess of 30 feet on their plot. '

(c) For mandatory injunction against (i) defendant No.3 to order them to cancel their approval for construction of multistoreyed building in Block 5 Scheme No.5, Clifton Karachi contrary to Brochure, (ii) against Defendant No.4 to cancel the approved plan for the construction of the multistoreyed building on the plot in suit again contrary to law and (iii) against defendant No.4 to take proper action to demolish the building constructed contrary to law.

(d) Permanent injunction against defendant Nos. 1 and 2 restraining them from erecting a multistoreyed building in excess of 30 feet:

4. After filing of the above suits. the present Constitutional petition has been filed on 18‑6‑1990 claiming in essence the same reliefs that have already been claimed in the suits. The respondents are also the defendants in the suits. It was pointed out to Mr. Naimur Rehman, learned counsel for the petitioners, that in view of the pendency of the earlier suits and interim relief having been granted in the High Court Appeals arising out of disposal of injunction applications filed in the suits, in the facts of this case the appropriate course for the petitioners to adopt is to pursue the civil suits as the prayers in the suits filed earlier and the Constitutional petition now filed are similar. An attempt was made by Mr. Naimur Rehman to argue that there is more difference in the two litigations, namely, the suits and the Constitution petition, but after going through the plaints and the memo of the present Constitutional petition we find that there is no material difference. In the litigation between the parties some questions of facts will also have to be decided and our view is that the suits already filed are the proper remedies for the petitioners. In the circumstances, this petition is liable to be dismissed.

As a result this petition is dismissed but with no order as to costs.

A.A./I‑189/K Petition dismissed.