Mst. HAWA BAI vs HAJI AHMAD and another

ORDER

' The plaintiff is the owner of plot and constructions bearing No. 202/B-1 Block 2, P.E.C.H.S. Karachi where she is residing with her family for the last more than 27 years. She has constructed bungalow on the front side and on the back side an annexe has been constructed which according to the plaintiff is according to the approved plan. The defendant No. 1 who owns the adjacent plot No. 202/1-A, Block 2 P.E.C.H.S. Karachi has constructed ground floor of an annexe on the back portion of his Plot which is adjacent to the plaintiff's boundary wall. The defendant No. 1 is now constructing first floor of the annexe for which Pillars have been raised. The defendant No. 1 has left no space between the construction and the boundary wall of plaintiff No.

1. The plaintiff has objected to raising of the first floor on the ground that it will obstruct right of light, air and privacy. It is further alleged that this construction is being raised by the defendant No. 1 without approval of the plan by the Building Control Authority. The defendant No. 1 has admitted that the construction is being raised without the approved Plan which has been submitted for approval and sanction has not been granted so far. The Building Control Authority has raised objection that the defendant No. 1 should obtain the consent of the plaintiff for raising such construction. The admitted position is that the defendant No. 1 is raising construction on the first floor adjacent to the plaintiff's boundary wall without leaving any compulsory space and that the plan for raising the construction has not been approved by the Building Control Authority. Mr. Umrani, the learned counsel for the defendant No. 1 states that he is prepared to give an undertaking which has been filed today that the defendant shall leave open space of 10 feet between the first floor of the annexe building of the plaintiff and the defendant No. 1 pending final disposal of the suit. It has also been stated that if it is proved that the proposed building will violate the easement right of air, light and privacy of the plaintiff the defendant No. 1 shall demolish the disputed construction to the extent to its violation and no compensation will be claimed by the defendant No. 1.

' In the facts and circumstances of the case prima facie it is clearly established that if the proposed construction is raised on the first floor it will effect the plaintiff's right of light, air and privacy. The learned counsel for the defendant mainly relying on the undertaking given by the defendant No. 1 referred to two authorities viz. 1981 CLC 414 and 1981 CLC 513 in which according to the learned counsel on undertaking being given permission to raise the disputed construction was allowed on terms. In my view the facts in those cases were completely different because there the defendants were raising construction according to the approved plan. In both the cases the Plan had been approved but the plaintiffs were objecting that it will infringe right of privacy, light and air. In my view in such disputes, if on such undertaking construction is allowed to be raised which is not according to the approved plan, then it is bound to create a very anamolous A situation. It will amount to bypassing the mandatory requirement of law of obtaining approved plan before raising construction and clothe it with legitimacy under the order of the Court. Such sanction though in the nature of a temporary order prolong for an indefinite period and experience has shown that it leads to serious complications and legal ramifications and often third party's vested interest is created making it difficult to demolish the construction so raised. To lay down a rule to allow construction particularly unauthorised, on such undertaking as in the present case, is likely to encourage raising of the planned structures and would amount to creating dangerous precedent which may ultimately result to legal complications and multiplicity of litigation in which innocent third parties will be more affected if the construction has been raised on commercial basis. Such constructions are not beneficial to the parties and obstruct planned development of a locality Therefore, the undertaking offered by the defendant is not acceptable particularly as the plaintiffs has opposed it.

' In the present case the defendant No. 1 has not obtained the approval of the Building Control Authority. According to Mr. Umrani Regulation 23 provides that even before obtaining the approved Plan and sanction construction can be raised. This is a wrong interpretation placed upon the provision of Building Control Ordinance, 1979. A construction should be made after obtaining an approved plan from the Authority. Section 6 of Building Control Ordinance, 1979 is very clear and leaves no room for such argument as contended by Mr. Umrani. Further by obtaining an order from the Court and raising construction which has not been approved by the Authority, the defendant No 1 wants to clothe his illegal acts under the sanction of the Court which cannot be permitted. In these circumstances the plaintiff has made out a prima facie case. If the construction is allowed to be raised which is unauthorised will cause irreparable injury to the plaintiff and the balance of convenience is also in favour of the plaintiff. The defendant No. 1 is restrained from raising first floor construction on his annexe building in the back side of his plot in respect of which suit has been filed, till final disposal of the suit.