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Regular Second Appeal No. 426 of 1964, heard on 14th June 1974.

------ R. 2(h)-Alterations of internal arrangements of buildings-Dis allowed only when affecting drainage, ventilation, or other sanitary arrangements, or security or stability of building-Building comprising big hall and such hall subdivided into compartments by man high mirrors and each compartment used for different types of merchandise-Alterations. held, not material under r. 2(h) and could mot be ordered to be removed.

Shiva Ram v. Emperor A I R 1935 Lah. 445 distinguished.

Aftab Iqbal for Hakim Muhammad Sardar Khan for Appellant.

Respondent No. 1 : Ex parte.

Date of hearing : 14th June 1974.

Haji Ghulam Mohammad and Nizam Din are the owners of 2 adjacent plots situated in Bhawana Bazar, Lyallpur. They decided to construct a building jointly on the two plots and, therefore, sought the permission of the Municipal Committee which was duly granted to them. Having obtained the permission, they proceeded to construct a hall on it. Sometimes later, they were served with a notice by the Municipal Committee directing them to remove the wooden partition placed by them in the hall. They felt aggrieved and filed a suit for a perpetual injunction restraining the Municipal Committee from interfering with the building constructed by the plaintiffs. This suit was necessitated by the threat contained in the notice that if' the plaintiffs did not proceed to demolish the partitions immediately, the work could be performed by the Municipal Committee itself.

The plaintiffs submitted that they had constructed the building in accord. once with the sanctioned plan and that it was incorrect to say that they had thereafter established a market consisting of several shops in it. They said that they had only decorated the hall. ,The defendant contested the suit and the learned Civil Judge framed the following two issues

(1) whether the change effected in the hall amounts to decoration or amounts to material alteration or unauthorised construction.

(2) Relief.

The learned Civil Judge found issue No. 1 against the plaintiffs and, therefore, ,dismissed the suit with costs on 15-1-1964.

The plaintiffs felt aggrieved and filed an appeal which was accepted by Sh. Ashfaq Ali, District Judge, Lyallpur, on 1-4-1964. Hence this second appeal.

The plaintiffs produced three witnesses. Mr. Bashir Ahmad Rizwan (P. W. I) proved the copy of the report submitted by him as a Local Commissioner. Hakam Ali (P. W. 2) Superintendent of the Buildings Branch of the Municipal Committee stated that the previous applications submit ted by the plaintiffs for construction of two buildings on the plot had been rejected by the Municipal Committee and Din Muhammad (P. W. 3), the special attorney of plaintiff No. 2, only reiterated the case of the plain tiffs.

The report submitted by the learned Local Commissioner observed that it was incorrect to say that the hall had been converted into a market, he on the other hand, was of the view that there were several sales men employed by the plaintiffs who were getting their salary from them who were running the business. He found that these salesmen have no right, title or interest in the goods that were lying in the shop. He further found that the building comprised a big hall which had been sub-divide Id into compartments with the help of man-high mirrors. The compartmental, thus created were used for the use of different types of merchandises. He, also found that these partitions were just temporary. He was conclusively of the view that the hall as converted could not be termed as a market.

The report of the Local Commissioner which was not objected to at any stage only had, therefore, to be accepted as it is conclusively shows that the stand of the Municipal Committee that a fulfledged market has been established in the hall which was not meant for the use of the two plaintiffs is not correct. The further contention that walls have been constructed to effect partition and thus creating fifteen shops is also factually incorrect. These are observations which have been accepted by the learned lower Court and as findings of fact they are conclusive particularly because they are based upon the evidence of an impartial witness who had been appointed by the Court as a Local Commissioner and who is alt. Advocate.

The question would, therefore, be whether such action on behalf of the plaintiffs can be termed as a material alteration in the building running. contrary to the building plan sanctioned by the Municipal Committee. The West Pakistan Municipal Committee (Definition of Material Alterations of Buildings) Rules, 1960 published in P L D 1960 West Pakistan Statutes at p. 334 runs as follows :-

"2. Definition of Material alteration o/' a building.-Any one of the, following acts or a combination thereof shall constitute a material alteration of a building for the purposes of clause (16) of section 3 of, the Municipal Administration Ordinance, 1960

(a) The enlargement or reconstruction of any building, or of any wall,verandah, fixed platform, plinth, doorstep or the like, whether constituting part of a building or not;

(b) the structural conversion into a place for human habitation of any building not originally constructed for human habitation;

(c) the structural conversion into more than one place for human habitation of a building originally constructed as one such place;

(d) the structural conversion of two or more places of human habitation into a greater number of such places ;

(e) the addition of any rooms, buildings, outhouses or other structures. to a building ;

(f) the reconstruction of the whole or any part of the external walls of a building. or the renewal of the posts of a wooden building ;

(g) the construction in a wall adjoining any street or land not belonging to the owner of the wall, of a door opening on to such street or land ;

(h) such alterations of the internal arrangements of a building as affect its drainage. ventilation or other sanitary arrangements or its security or stability."

Learned counsel for the appellant places reliance on Shiva Ram v. Emperor A I R 1935 Lah. 445 wherein it was held that :-

"The wooden partitions which divided it into portions which were lee out as shops were not merely temporary erections but fell within section. 3(5) (a) as being material alteration to the building."

The facts of that case are entirely different from those of the one before me. In that case, the applicant had obtained permission of the Municipal Committee to construct a building and had entered into an agreement with the Committee that he would use the building as a studio and for no other purpose. He had subsequently divided the hall by wooden partitions into three portions and let them out as shops. The Municipal Committee resolved that :

"Notice be served on Shiv Ram to remove his residential quarters and shops which he has let in place of the photographic studio and restore the building to the sanctioned condition within one month."

It was found in that case that

"These partitions are substantial affairs, completely sub-dividing the building and leaving no means of communication between the different portions. They reach the ceiling and are in fact wall though construct ed of wood: " It is clear that they are not merely temporary erections and clearly fall within the scope of section 3(5)(a) of the Act being a material alteration to the building."

In the case, therefore, the partition walls were right up to the ceiling, In the present case, they are only man-high and they do not reach up to the ceiling. In that case it was found that the walls were constructed of wood. In this case, the Local Commissioner has categorically found that these are temporary structures in the shape of man-high mirrors" in that case there was an agreement between the Municipal Committee and the plaintiff that he will construct a photographic studio and use it for that purpose only. In the present case, there was no such agreement at all. The dictum of the case cited above can, therefore, not be applicable to the case before me because the facts are so radically different.

I have tried my best to find out if the position obtaining in the present case could be covered by any of the provisions of rule 2 of the rule cited above.

Alterations of the internal arrangement of the building are covered b rule 2 of sub-rule (h). Only such alterations of the internal arrangement are disallowed as "affect its drainage, ventilation or other sanitary arrangements or its security or stability."

No such allegations have been made in the written statement by the appellant and at no stage has it been their case that the alterations aforesaid have in any manner resulted in anything which could be covered by rule 2(h).

The appellant has consequently no case and the judgment of the learned District Judge is free from any lacuna. The result is that the appeal is dismissed with costs throughout and the judgment and decree of the learned District Judge is affirmed.

S. A. H. Appeal dismissed.

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