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---S. 192--Lahore Municipal Corporation, Bye-laws, 1940, Bye-law 12- Site Development Scheme--Validity of, as compared to Bye-laws--Site Development Scheme framed under S. 192, Punjab Municipal Act, 1911, being earlier in time, held, would have precedence over Bye-laws framed thereafter.

---S. 115--Revisional jurisdiction, exercise of--Concurrent findings of Courts--Effect--Such findings by Courts having jurisdiction, held, would not be interfered with by High Court, in revisional jurisdiction, in absence of breach of substantive or procedural law.

___S. 115--Lahore Municipal Corporation Bye-laws, 1940, Bye-law 12- Sanctioned plan, infringement of--Court, held, would require a strict proof for declaring a particular act/sanctioned plan as ultra vires being in infringement of any law.

__S. 77(5)--Site plan--Rejection of--Effect--No finality, held, would be attached to order of rejection of site plan by Authority--Authority could review earlier order of rejection of such plan.

---Where a particular thing was done in accordance with permissibility, law, held, would not take note of remote considerations.

Aitzaz Ahsan assisted by Umar A. Bandial for Petitioner.

S.M. Masood for Respondent No. 1.

Fayyaz Hussain Kadri for Respondent No. 2.

Date of hearing: 5th March, 1984.

This Civil Revision arises out of a suit instituted by the petitioner on 3-5-1982 against the respondents in the Civil Court at Lahore for a declaration that a sanctioned plan, dated 27-5-1981 of Building Plan No. MR/91 by respondent No. 2 was repugnant to Lahore Municipal Corporation Bye-laws and Law as such was without jurisdiction, null and void and a fraud on the Statute; an order passed by respondent No. 3 affirming the void sanctioning of 'Building Plan was without jurisdiction, inoperative and of no legal effect and the same merited cancellation; the petitioner was entitled to an area of six feet wide at points X and Y marked in the attached plan according to the Bye-law.. As a consequential relief a direction by way of a mandatory injunction to respondent No. 1 was sought for demolishing the illegal construction at the same time a permanent injunction for restraining respondent No. 1 from raising any construction on the basis of void sanctioned plan No. MR/91, was prayed.

2. The brief facts of the case as alleged are that an evacuee property bearing No. S 60 R 5 situated at Mozang Road, Lahore, measuring 12 Marlas was transferred to the petitioner and respondent Mian Nazir Ahmad in two equal shares i.e. six Marlas each. Subsequently, the property was renumbered. The portion transferred to the petitioner was numbered as S-60-R-13-A/1 whereas the one falling to the share of Mian Nazir Ahmad respondent was numbered as S-60-R.13 A/2. Thereafter on 5-4-1980 Mian Nazir Ahmad respondent made an application to the Lahore Development Authority for the sanctioning of a building plan so as to raise a construction over six Marlas allotted to him. The Proposed building plan embraced the construction of three storeys above the ground level and apart from the ground floor, first floor, 2nd floor for residential purposes, there was shown in the plan also a basement for air-raid shelter and partly for personal provisions store. However, the building plan was rejected by the Authority on 10-5-1980 on the ground that the plan was in violation of bye-laws. Later on Mian Nazir Ahmad respondent got the plan sanctioned from the Lahore Municipal Corporation on 27-5-1981. He then started raising construction accordance with the building plan so sanctioned. The petitioner preferred an appeal and the Commissioner as Appellate Authority under the Punjab Local Government Order 1979, remanded the appeal to the Chief Engineer which was later on rejected. In a writ petition having been filed by the petitioner against the rejection of her appeal this Court directed the Commissioner to hear the parties again. In pursuance of that order the Commissioner afforded an hearing to the parties and rejected the appeal. According to the petitioner's averments made in the plaint the order of the Commissioner was illegal inter alia on the grounds that the Lahore Municipal Corporation had sanctioned the building plan on the basis of non-existing house building scheme known as Messrs Muhammad Iqbal, Muhammad Rafi sons of Sir Muhammad Shafi Scheme; that in the zone in which the building in question fell no building could be constructed on an area less than one Kanal and the power to relax that condition lay only with the Provincial Government; that "a basement or under-ground rooms of sanctioned building plan or elsewhere", could not be allowed in an entire area since that was not only repugnant to LMC Bye-laws but also to Lahore Development Authority's Building Regulations. According to the petitioner by virtue of bye-law No. 12 of Bye-laws read with the Schedule at page 28 that was mandatory to give a space of six feet on the back and front width while LDA Building Rules allowed maximum 400 sq. reet for basements and that too after special and inquisitive Engineering Instructions, as such the order of sanctioning the building plan, dated 27-5-1981 and the subsequent orders, dated 16-3-1982 and 24-4-1982 passed by the Commissioner as Appellate Authority were illegal and without jurisdiction. It was also averred in the plaint that the very application for the sanction of building plan was based on complete mis-statement of facts; the matter was governed by Bye-law No. 12 which required that six feet width of open area across the full width of the front and back of the site should be left and that Mian Nazir Ahmad respondent had intentionally deprived the statutory right of six feet area on account of long standing jealousy thereby affecting the petitioner who intended to raise construction over her adjoining plot which could not be done as long as the building plan of respondent No. 1 ' Mian Nazir Ahmad was in the field; that even if the scheme known as Messrs Muhammad Rafi, Muhammad Iqbal was applicable, there was a statutory bar on construction in an area less than one Kanal and relaxation in the scheme could only be done by the Provincial Government. It was also alleged in the plaint that on the southern side of the three connected plots there stood erected a huge old building and in the event of the construction of basement as proposed in the plan, the foundations of the huge building were to become exposed which facts were not mentioned by respondent No. 1 in his application for the sanction of the plan, rather the concerned officials did not inspect the spot as such they could not visualise the positive destruction which entailed the sanction of plan and the construction based on that plan. It was apprehended that the huge building could fall down and that could damage not only the superstructures raised upon the connected plots but also the huge residential building of the petitioner as a result there was an apprehension of the human loss and injury to his petitioner's property. The petitioner also averred in the plaint that the building plan was sanctioned in the absence of the petitioner; the Lahore Development Authority had rejected the application of respondent No. 1 in the first instance being repugnant to L.D.A. Building Regulations and that the respondent No. 1 in collusion with the officials of the Lahore Municipal Corporation had concealed the factum of the rejection of his application by the Lahore Development Authority a such the Corporation had no jurisdiction to review the order of the Lahore Development Authority, dated 10-5-1980.

3. The respondents contested the suit and filed their written statements. Respondents Nos. 2 and 3 namely Lahore Municipal Corporation and the Commissioner, maintained that the building plan had been sanctioned in accordance with law; that at the time i.e. on 5-4-1980 when the application for building plan was submitted the locality/area was being administered by the Lahore Development Authority and as the scheme Messrs Muhammad Rah and Muhammad Iqbal was not available in the record of the Lahore Development Authority, the building plan was sent to the Lahore Municipal Corporation since by that time again the locality was transferred to the Lahore Municipal Corporation and, therefore, the building plan was validly sanctioned. Sections 54 and 56 of the Specific Relief Act were not applicable; the petitioner had no locus standi to file the suit and that the petitioner had not approached the Court with clean hands, as such, she was not entitled to the discretionary relief.

4. Mian Nazir Ahmad, respondent No.1 denied that his building plan was rejected by the Lahore Development Authority, he maintained that since his application was not decided within 60 days as required he approached the Authority for the sanctioning of the plan within the aforesaid stipulated period but the Authority in order to justify the delay managed to pass an ante-dated order rejecting the plan without notice to the respondent, against which the respondent made a representation on 31-8-1980 upon which it transpired that the plan was under consideration and was transferred to Lahore Municipal Corporation which had by that time got jurisdiction over the matter in view of the transfer of the locality/area to the latter. Respondent No. 1 also maintained that the locality was governed by the scheme known as 'Messrs Muhammad lqbal, Muhammad Rafi sons of Sir Muhammad Shafi Scheme Mozang Road, Lahore, and the building plan was sanctioned by the Lahore Municipal Corporation according to the schedule of the said scheme. He also raised preliminary objections as to the locus standi of the petitioner to file the suit since she had no personal interest and no damage or injury had been caused to her by the sanction of the building plan; further said that she had not come to the court with clean hands; that the suit was barred by section 56(k) of the Specific

Relief Act and that the suit was not properly valued and the plaint was deficient as to the court-fee.

5. The learned trial Court dismissed the suit with costs also burdening the petitioner with special costs of Rs.1000, vide its judgment, dated 22-12-1983. The petitioner being aggrieved there from filed an appeal before the learned District Judge, Lahore. The learned District Judge after discussing the entire case concurred with the findings of the learned trial Court except the finding on the question of the court-fee whereby he held that the suit was properly valued for the purposes of court-fee and jurisdiction. Consequently he dismissed the appeal vide his judgment, dated 24-3-1984.

6. The entire case of the petitioner before this Court is that the construction in the area is governed by the revised Bye-laws under sections 188(v), 189(3), 190 and 199 (1) of the Municipal Act, 1911, sanctioned in 1940 which are in force even today by virtue of the saving clauses of the Municipal Ordinance, 1960, the Local Government Act, 1975 and the Punjab Local Government Ordinance, 1979. The sanctioned plan and the construction there under with a 100 per cent coverage is in infringement of Bye-law No. 12. The scheme relied upon by the Lahore Municipal Corporation was not proved. No gazette notification of the scheme was referred to. There was no schedule of the scheme on the record. The plan was purported to have been sanctioned while allegedly relying on certain precedents. The file alleged to be part of the record of the Lahore Municipal Corporation was numbered yet 30 pages were not numbered and those indicated the precedents. The so-called precedent cases were not relevant to the issue before both the Courts below in so far as none of those were concerned with the construction of a basement. In any case the sanctioning of the plan in question was ultra vires the power of the Lahore Municipal Corporation. The plan had already been rejected by the Lahore Development Authority and that was not brought to the notice of the Lahore Municipal Corporation. Both the Courts below had wrongly held that the petitioner had failed to prove any special damage or injury to her person or property as such she had no right to bring the suit.

7. The learned counsel for respondent No. 1 has supported the conclusions of both the Courts below in a very detailed address referring to each and every aspect of the case, alongwith relevant law, pointing out also that there are concurrent findings of fact, which are not open to interference in the exercise of the jurisdiction under section 115, C.P.C.

8. The learned counsel for respondent No. 2 has supported on the main question the judgments of both the Courts below.

9. The relevant part of Bye-law No. 12 is being reproduced here which runs as:-

"No underground room shall be constructed except on the roads or portions of roads shown in Appendix A and subject to the following restrictions which shall apply to rooms used for sleeping in or for workshops or for the sale of goods or for the storage and warehousing of goods as detailed below and no underground room shall be used for the purpose of public entertainment including use as a restaurant or for dancing or singing:-

(a) An open area must be provided, across the full width of the front and back of the site, of the width shown in Appendix A provided that in the case of corner site a space may be given on the two-sides abutting on the two roads forming a corner.

In the case of rooms for the storage or warehousing of goods it will be sufficient if there is an open area on all the streets shown in Appendix across the full width of one side only of the site of a minimum width of 5 ft."

10. Both the Courts below found that a scheme z-nown as Messrs Muhammad lqbal, Muhammad Bafi sons of Muhammad Shafi framed under the Punjab Municipal Act, 1911 was still in force for having been saved under the laws which found its mention in Exh. P. 1 upon which the petitioner while relying maintained that in the area on building could be erected on an area less than one Kanal. In fact the scheme stood established through various pieces of evidence on the record. That was also mentioned in the old document Exh. D. 17. In the presence of the scheme the master plan as given under section 74 of the Punjab Local Government Ordinance, 1979 read with section 75 of the Ordinance, was not applicable because a site development scheme as excepted under section 75 was to be applied then, so the construction of building by respondent No. 1 was to be regulated by the above said scheme. The scheme was framed in the year 1934 while the Bye-laws were brought into existence in 1940, so the provision of the Bye-laws was not to take any precedence over the scheme to which to be legal a construction was to conform. As the scheme was framed before the partition unfortunately its schedule of clauses was not traceable. Whatever evidence was available with the Lahore Municipal Corporation that was in the form of precedents of the locality which were sanctioned plan No. 144 registered on 9-2-1938 (Exh. D.W. 2/2), plan No. 53 registered on 15-1-1937 (Exh. D.W. 2/3), plan No. 1195 registered on 4-10-1937 (Exh. D.W. 2/4) (the building plans were sanctioned under the scheme where 100 per cent coverage on construction was allowed). The general attorney of the petitioner had also admitted in his statement that there were precedents in the area where the houses had been constructed. The Lahore Municipal Corporation as such in sanctioning the plan was not lacking the authority so as to say that the act in sanctioning the plan by the Lahore Municipal Corporation was ultra vires the power or in infringement of the statute, bye-laws or rules. As to the absence of any precedent for 100 per cent coverage concerning a basement that was for the petitioner to have proved that a distinction could be made by referring to something material that 100 per cent coverage and construction did not apply to a basement. Both the Courts below were of the view that the Lahore Municipal Corporation in sanctioning the plan had not acted ultra vires.

11. The matter which was dealt with by both the Courts below verged on questions of facts as well as of law. I am not persuaded to take an exception to the conclusions of both the Courts below since both the Courts were on a rational plane satisfied that neither the bye-laws nor the master-plan was applicable and as to their conclusions in law they cannot be regarded as having exercised their jurisdiction with any of the defects as enumerated within section 115, C.P.C. Suffice it to say that both the Courts below had the jurisdiction to come to any conclusion unless it could be maintained that the conclusions so drawn were either in breach of the substantive or the procedural law. In view of the evidence the Lahore Municipal Corporation had the authority to sanction the plan on the force of the precedents in the event of non-availability of the original scheme as to the establishment of which scheme a concurrent finding of fact has been returned by both the Courts below that it did exist. For a Court to declare a particular act as ultra vires the power or that a sanctioned plan is in, infringement of the law a very strict proof is required. The learned counsel for the petitioner has not been able to convince that Article 12 of bye-laws applies to the case in derrogation of the site development scheme, the requirement as to which had been ascertained by the Lahore Municipal Corporation by referring to the precedent cases which in the absence of directed evidence could be relied upon as a substitute.

As to the submission of the learned counsel for the petitioner that none of the precedents cited dealt with a case of basement it can simply be observed that onus of the main issue was on the petitioner, therefore, it was for her to have shown that where a hundred per cent coverage was allowed yet an exception could be taken as to the basement even under the provision of the scheme. Regarding the rejection of the earlier plan by the Lahore Development Authority the learned trial Court had observed that, that was pending consideration when with the transfer of the area was forwarded alongwith certain documents to the Lahore Municipal Corporation whereas the learned District Judge held that even if the plan was taken as having been rejected by the Lahore Development Authority, still under section 77(5) of the Ordinance, 1979, no finality was attached to the order of rejection, only an order passed in appeal against the order of rejection was by that section XXX final. Even if the plan had been rejected on 10-5-1980, there was nothing in law to prevent respondent No. 1 from asking for its reconsideration. The learned District Judge took a correct view of the matter in this behalf.

12. As to the right to institute the suit the learned counsel for the petitioner has relied upon Hirendra Nath Datta v. Corporation of Calcutta and others A I R 1941 Cal. 386 wherein it has been held that where the building committee acted illeRally in sanctioning the plan which clearly infringes Rules 30 and 32 of Schedule 17 Calcutta Municipal Act, the aggrieved party could make an application under section 45 Specific Relief Act for a mandatory order on the Corporation of Calcutta requiring the Corporation to rescind the illegal sanction. Sections 17 and 19 Calcutta Municipal Act would not provide the petitioner with an adequate remedy. It must be assumed that in framing the statutory rules relating to the space to be left between buildings and their height, the Legislature had in view the general convenience of all residents in the municipal area in order to ensure proper ventilation and sanitation for the rate-payers, and possibly adequate means of preventing the spread of fires from one building to another: In re: Sm Lakshmimoni Dassi A I R 1941 Cal, 391 wherein it has been observed that where the provision is primarily in favour of the general public but in the nature of things the breach of it must injure the specific individual to quite a different degree, such a right can be assumed in he specific individual. Hence, where building plans are passed and permission to build is given contrary to building restrictions contained in bye-laws whereby the premises of adjacent owner is injured as to light, air, health and amenities the Corporation owes such a duty to the adjacent owner, and there is in the adjacent owner such a legal right, as to found an application for mandamus.

Against the above decisions the learned counsel for respondent No. 1 has referred to Cawashah Bomanji Parakh v . Prarulla Nath Rudra A I R 1941 Nag. 364 (also relied upon by the learned District Judge) wherein it is said that in a suit for injunction restraining the building of a house it is incumbent on the plaintiff under section 56(k) to show some special damage or injury. The mere fact that the Municipal Committee acted beyond its powers in granting the sanction for construction of the house is not by itself sufficient to entitle the plaintiff to sue; Nandalal Ladia and another v. Provudayal Tikriwalla and another A I R 1952 Cal. 74 wherein it has been observed that under sections 54 and 55, Specific Relief Act, the plaintiffs may pray for a perpetual or mandatory injunction to prevent the breach of an obligation existing in favour of the plaintiffs, and where no such obligation exists the plaintiff has no right to pray either for a mandatory or perpetual injunction merely on the ground that the proposed construction on the defendant's land may be in breach of Municipal Rules and Bye-laws; Kashi Prasad Kataruka v. Bibi Allay Fatma and others A I R 1957 Pat. 303, in this case it was held that the sanction granted by the Patna Municipality in respect of a building plan which was in contravention of its bye-laws 21 to 23 was not ultra vires or without jurisdiction and the rights which accrued to the person on account of that sanction were preserved by sections 2 and 3 of the Patna Municipal Corporation Act, 1959, which apply to the case of an illegal sanction; and Buxton and others v. Minister of Housing and Local Government (1960) 3 A E L R 408, in this case it was held that the land owners were not persons 'aggrieved within the meaning of section 31 of the Town and Country Planning Act, 1959 because the Minister's action in allowing the appeal did not infringe any legal right of theirs, for their ccOnmon law rights were not infringed and as individuals they had no statutory right under the Town and Country Planning Acts, 1947 to 1959, to have their representations considered by the Minister.

13. It is sufficient to say that had Article 12 of the Bye-laws and the Master Plan restrictions been applicable then it could be maintained that the plan as sanctioned was in infringement of the standing rules and law and in that event the petitioner being the adjoining owner would have been an aggrieved party entitled to sue but in the present case as observed above the plan was sanctioned under a Site Development Scheme following the precedents within that, therefore, it cannot be said that an injury if any is complainable. Where a particular thing done in accordance with the permissibility then the law does not take note of the remote considerations.

14. For the foregoing reasons this revision petition is dismissed but in the circumstances there will be no order as to costs.

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