H.C.A 260/2019 (D.B.) Sindh High Court, Karachi

Sindh High Court · 2020 · Before Muhammad Faisal Kamal Alam

Bench, who has dismissed the Injunction Application of present Appellant being CMA No.13131 of 2018 (Plaintiff in Suit No.1762 of 2018).

2. Succinctly, Plaintiff has filed the above Suit against the Respondents, particularly Respondent No.1 that he and his other partners 2 are raising construction of a multi storey building at Plot No.335, situated in Cosmopolitan Co-operative Housing Society Limited, Jamshed Town, Karachi (in Respondent No.3)-‘the subject property’ in violation of law and relevant Rules, viz. Karachi Building and Town Planning Regulations, 2002 (Building Regulations). Plaintiff has sought number of reliefs, including enforcement of his easementary rights and forestalling private nuisance.

3. Mr. Intikhab Alam, Advocate representing the Appellant has argued that the impugned order has not considered a very basic fact, that construction of a multi storey building at the subject property is violation of Clause-7 of the lease condition of the subject property, so also that of Regulation 3-2.2. He has also referred to Regulation 19.1 in support of his case, which relates to land use classification along with other Regulations. Further contended that since Cosmopolitan Co-operative Housing Society/Respondent No.3 is not mentioned in the above Regulations, therefore, only ground plus one, that is, double storey construction can be raised on the subject property and not a multi storey building, as wrongly / illegally approved by the Respondent-Sindh Building Control Authority (SBCA). He has stated that even the approved building plan (at page-341 of the Appeal file) is in violation of the above Regulations and is to be held illegal by this Court. He has referred to the following Judgments to augment his arguments_ 1. 2018 YLR page-560 [Sindh] [Kathiawar Cooperative Housing Society Ltd. Through Member Managing Committee and another vs. Province of Sindh through Secretary and 3 others]

2. PLJ 2007 Karachi page-361 [Muhammad Anas Kapadia and 19 others vs. M. Farooq Haji Abdullah and 5 others] 3

4. The above arguments were controverted by Mr. Khawaja Shams- ul-Islam, Advocate, representing the Respondent No.1. He contends that the impugned Judgment has taken into the account, relevant Regulations as well as different Judgments on the subject, which were handed down over a period of time concerning the controversy involved in the present Appeal and in the above lis. He argued by referring Regulations 2-54, 2-107 read with Regulations 25-9.1, that there is no conversion of plot from its residential status to commercial, because no shops or showrooms are proposed to be built in the subject multi storey project, which comprises of flats only, for different persons and families. He has referred to No Objection Certificate (NOC) given by different authorities to demonstrate that codal formalities were completed before granting approval of the building plan of Respondent No.1. These documents are at pages-315, 335 and 347 of the Court file.

5. Learned Additional Advocate General Sindh representing the official Respondents No.6 and 7 supported the arguments of learned Advocate for Respondent No.1.

6. Learned counsel for Respondent No.1 has cited the following case law in support of his arguments. 1. 2006 YLR page-2537 [Karachi] [Zaheer Ahmed Chaudhry and 9 others vs. City District Government, K…

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