2017 CLC 154 Islamabad
2017 C L C 154
[Islamabad]
Before Athar Minallah, J
Syed NUSRAT ALI SHAH----Petitioner
Versus
CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD through Chairman----Respondent
Civil Revision No.267 of 2014, decided on 22nd March, 2016.
(a) Specific Relief Act (I of 1877)---
----S. 42---Suit for declaration---Development Authority directed the plaintiff to remove unauthorized construction---Plaintiff filed suit against the direction which was dismissed concurrently---Validity---Trial Court as well as Appellate Court had rendered well-reasoned judgments---Plaintiff had not sought approval from the Development Authority and notice was issued to him---Development Authority being regulator was empowered to proceed in accordance with law if there was violation of regulations---No mis-reading or non-reading of evidence or infirmity was pointed out in the impugned judgments passed by the courts below---Revision was dismissed in circumstances.
(b) Civil Procedure Code (V of 1908)---
----S. 115---Revision---Scope---Scope of revision by High Court was limited when findings of courts below were concurrent---Revision would be justified when there was misreading or non-reading of evidence or when there was an error in the exercise of jurisdiction or courts below had acted in the exercise of their jurisdiction illegally or with material irregularity and findings of fact recorded were without considering documents and record in their true perspective.
Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 and Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 ref.
JUDGMENT
Syed Asghar Hussain Sabzwari and Sheikh Khizar-ur-Rasheed for Petitioner.
Rehan Seerat and Ms. Sabih Farooq for Respondents.
Date of hearing: 22nd March, 2016.
ATHAR MINALLAH, J.--- This Civil Revision is directed against judgments and decrees dated 17-06-2014 and 11-01-2013, passed by the learned Additional District Judge-West, Islamabad and the learned Civil Judge-West, Islamabad respectively.
2.The facts, in brief, are that plot No.1, Blue Area, F-6/G-6, Islamabad was initially allotted to one Mst. Kaniz Zohra. The plot was later divided into five equal plots. Plot No.1-E, Blue Area, F-6/G-6, Islamabad measuring 110 x 160 feet (hereinafter referred to as the "Plot") was jointly allotted in the name of three persons including the petitioner. The Capital Development Authority (hereinafter referred to as the "CDA")
1 of 32/22/2018, 12:39 PM
Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017I208
vide letter dated 19-11-1981 had transferred the plot and the terms and conditions thereof were explicitly stated in the said letter. The petitioner/plaintiff alleged that the CDA had violated the terms and conditions of the transfer letter and, therefore, filed a complaint before the learned Wafaqi Mohtasib. The complaint was decided vide order dated 20-04-1987 and was later reviewed vide order dated 07-02-1988. The petitioner/plaintiff proceeded with the construction. CDA raised objections and the petitioner/plaintiff once again invoked the jurisdiction of the learned Wafaqi Mohtasib. Latter passed order dated 19-02-1992. The petitioner/plaintiff submitted the required documents i.e. plans and designs for approval by the CDA. However, without an approval of the plans the petitioner/plaintiff continued construction. Notices dated 13-05-1993 and 22-06-1993 were issued by the competent Authority of CDA, wherein demand was raised for payment of charges/dues in respect of construction of additional floor. The petitioner/plaintiff filed a suit on 29-06-1993, for declaration and permanent injunction. A complaint was also filed before the learned Wafaqi Mohtasib and the same was disposed of by the latter vide order dated 25-01-1995. Consequently, the suit filed on 29-06-1993 was withdrawn. A notice dated 03-05-1997 was issued by the CDA directing the petitioner/ plaintiff to remove the unauthorized construction and to stop further construction work for non-conforming use of the plot. The petitioner/ plaintiff was, therefore, asked to explain as to why proceedings may not be initiated in accordance with law. The petitioner/plaintiff, therefore, filed a suit for declaration and permanent injunction. The suit was contested by the CDA. Out of the divergent pleadings eight issues were framed by the learned Trial Court on 14-06-2004. After recording of evidence and affording opportunity of hearing to the parties the learned Trial Court dismissed the suit vide judgment and decree dated 11-01-2013. The petitioner/plaintiff filed an appeal and the same was dismissed by the learned Additional District Judge-West, Islamabad vide order dated 17-06-2014. Hence, the instant Civil Revision.
3.The learned counsel appearing on behalf of the petitioner/ plaintiff has contended that; both the Courts failed to take into consideration the various orders passed by the learned Wafaqi Mohtasib; the principle of locus poenitentiae was attracted in the instant case; no one from the CDA had entered the witness box in order to justify the penal and punitive action; the material on record was not properly appreciated.
4.The learned counsel appearing on behalf of the CDA on the other hand has argued that; no misreading or non-reading has been pointed out; Capital Development Authority Ordinance, 1960 (hereinafter referred to as the "Ordinance of 1960") and the Regulations made there under prescribes the procedure for seeking approval for construction of a building; a construction without seeking approval is unauthorized and illegal; an unauthorized construction attracts penal consequences; the petitioner/plaintiff has been avoiding payment of the charges/dues; the concurrent findings do not suffer from any misreading or non-reading.
5.The learned counsel have been heard and the record perused with their able assistance.
6.There is no cavil to the proposition that the scope of powers under Section 115 of the C.P.C. is of a limited nature, particularly when the findings of two Courts are concurrent. However, the eventualities which would justify interference are (i) where there is misreading and non-reading of evidence on the record which is conspicuous, (ii) where there is error in the exercise of jurisdiction, (iii) the courts have acted in the exercise of their jurisdiction illegally or with material irregularity, and (iv) the findings of fact recorded are without considering documents and record in their true perspective. Reliance is placed on case of Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others [2016 SCMR 24]. At the same time it is also settled law as held by the august Supreme Court in the case titled "Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another" [PLD 1970 SC 139], that the power vested in this Court under Section 115 of C.P.C. is of limited jurisdiction and is primarily intended for correcting errors made by subordinate Courts in exercise of their jurisdiction and discretionary orders of subordinate Courts cannot be interfered with unless found fanciful and arbitrary.
2 of 32/22/2018, 12:39 PM
Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017I208
7.The learned Trial Court as well as the Appellate Court have rendered well reasoned judgments. The concurrent findings to the effect that the petitioner/plaintiff had not sought approval from CDA and, therefore, the notice dated 31-05-1997 was issued stands established from the record. The petitioner/plaintiff admittedly could not produce any document or otherwise establish that the approval of the plans/ designs for the additional floors had been obtained before undertaking the construction. It is noted that CDA is the regulator established under the Ordinance of 1960. The Regulations made in exercise of powers conferred under the Ordinance of 1960 prescribes the procedure for obtaining approvals/permissions/NOC etc before an allottee of the plot starts the construction. CDA being the regulator is empowered to proceed in accordance with law if there is violation of the Regulations. In the instant case the concurrent findings do not suffer from any legal infirmity. The learned counsel appearing on behalf of the petitioner has not been able to point out any misreading or non-reading. Moreover, no illegality or material irregularity has been shown to have been committed by both the Courts so as to require interference by this Court.
8.For what has been discussed above, the instant petition is without merit and is accordingly dismissed.
ZC/140/Isl.Revision dismissed.
[Islamabad]
Before Athar Minallah, J
Syed NUSRAT ALI SHAH----Petitioner
Versus
CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD through Chairman----Respondent
Civil Revision No.267 of 2014, decided on 22nd March, 2016.
(a) Specific Relief Act (I of 1877)---
----S. 42---Suit for declaration---Development Authority directed the plaintiff to remove unauthorized construction---Plaintiff filed suit against the direction which was dismissed concurrently---Validity---Trial Court as well as Appellate Court had rendered well-reasoned judgments---Plaintiff had not sought approval from the Development Authority and notice was issued to him---Development Authority being regulator was empowered to proceed in accordance with law if there was violation of regulations---No mis-reading or non-reading of evidence or infirmity was pointed out in the impugned judgments passed by the courts below---Revision was dismissed in circumstances.
(b) Civil Procedure Code (V of 1908)---
----S. 115---Revision---Scope---Scope of revision by High Court was limited when findings of courts below were concurrent---Revision would be justified when there was misreading or non-reading of evidence or when there was an error in the exercise of jurisdiction or courts below had acted in the exercise of their jurisdiction illegally or with material irregularity and findings of fact recorded were without considering documents and record in their true perspective.
Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 and Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 ref.
JUDGMENT
Syed Asghar Hussain Sabzwari and Sheikh Khizar-ur-Rasheed for Petitioner.
Rehan Seerat and Ms. Sabih Farooq for Respondents.
Date of hearing: 22nd March, 2016.
ATHAR MINALLAH, J.--- This Civil Revision is directed against judgments and decrees dated 17-06-2014 and 11-01-2013, passed by the learned Additional District Judge-West, Islamabad and the learned Civil Judge-West, Islamabad respectively.
2.The facts, in brief, are that plot No.1, Blue Area, F-6/G-6, Islamabad was initially allotted to one Mst. Kaniz Zohra. The plot was later divided into five equal plots. Plot No.1-E, Blue Area, F-6/G-6, Islamabad measuring 110 x 160 feet (hereinafter referred to as the "Plot") was jointly allotted in the name of three persons including the petitioner. The Capital Development Authority (hereinafter referred to as the "CDA")
1 of 32/22/2018, 12:39 PM
Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017I208
vide letter dated 19-11-1981 had transferred the plot and the terms and conditions thereof were explicitly stated in the said letter. The petitioner/plaintiff alleged that the CDA had violated the terms and conditions of the transfer letter and, therefore, filed a complaint before the learned Wafaqi Mohtasib. The complaint was decided vide order dated 20-04-1987 and was later reviewed vide order dated 07-02-1988. The petitioner/plaintiff proceeded with the construction. CDA raised objections and the petitioner/plaintiff once again invoked the jurisdiction of the learned Wafaqi Mohtasib. Latter passed order dated 19-02-1992. The petitioner/plaintiff submitted the required documents i.e. plans and designs for approval by the CDA. However, without an approval of the plans the petitioner/plaintiff continued construction. Notices dated 13-05-1993 and 22-06-1993 were issued by the competent Authority of CDA, wherein demand was raised for payment of charges/dues in respect of construction of additional floor. The petitioner/plaintiff filed a suit on 29-06-1993, for declaration and permanent injunction. A complaint was also filed before the learned Wafaqi Mohtasib and the same was disposed of by the latter vide order dated 25-01-1995. Consequently, the suit filed on 29-06-1993 was withdrawn. A notice dated 03-05-1997 was issued by the CDA directing the petitioner/ plaintiff to remove the unauthorized construction and to stop further construction work for non-conforming use of the plot. The petitioner/ plaintiff was, therefore, asked to explain as to why proceedings may not be initiated in accordance with law. The petitioner/plaintiff, therefore, filed a suit for declaration and permanent injunction. The suit was contested by the CDA. Out of the divergent pleadings eight issues were framed by the learned Trial Court on 14-06-2004. After recording of evidence and affording opportunity of hearing to the parties the learned Trial Court dismissed the suit vide judgment and decree dated 11-01-2013. The petitioner/plaintiff filed an appeal and the same was dismissed by the learned Additional District Judge-West, Islamabad vide order dated 17-06-2014. Hence, the instant Civil Revision.
3.The learned counsel appearing on behalf of the petitioner/ plaintiff has contended that; both the Courts failed to take into consideration the various orders passed by the learned Wafaqi Mohtasib; the principle of locus poenitentiae was attracted in the instant case; no one from the CDA had entered the witness box in order to justify the penal and punitive action; the material on record was not properly appreciated.
4.The learned counsel appearing on behalf of the CDA on the other hand has argued that; no misreading or non-reading has been pointed out; Capital Development Authority Ordinance, 1960 (hereinafter referred to as the "Ordinance of 1960") and the Regulations made there under prescribes the procedure for seeking approval for construction of a building; a construction without seeking approval is unauthorized and illegal; an unauthorized construction attracts penal consequences; the petitioner/plaintiff has been avoiding payment of the charges/dues; the concurrent findings do not suffer from any misreading or non-reading.
5.The learned counsel have been heard and the record perused with their able assistance.
6.There is no cavil to the proposition that the scope of powers under Section 115 of the C.P.C. is of a limited nature, particularly when the findings of two Courts are concurrent. However, the eventualities which would justify interference are (i) where there is misreading and non-reading of evidence on the record which is conspicuous, (ii) where there is error in the exercise of jurisdiction, (iii) the courts have acted in the exercise of their jurisdiction illegally or with material irregularity, and (iv) the findings of fact recorded are without considering documents and record in their true perspective. Reliance is placed on case of Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others [2016 SCMR 24]. At the same time it is also settled law as held by the august Supreme Court in the case titled "Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another" [PLD 1970 SC 139], that the power vested in this Court under Section 115 of C.P.C. is of limited jurisdiction and is primarily intended for correcting errors made by subordinate Courts in exercise of their jurisdiction and discretionary orders of subordinate Courts cannot be interfered with unless found fanciful and arbitrary.
2 of 32/22/2018, 12:39 PM
Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017I208
7.The learned Trial Court as well as the Appellate Court have rendered well reasoned judgments. The concurrent findings to the effect that the petitioner/plaintiff had not sought approval from CDA and, therefore, the notice dated 31-05-1997 was issued stands established from the record. The petitioner/plaintiff admittedly could not produce any document or otherwise establish that the approval of the plans/ designs for the additional floors had been obtained before undertaking the construction. It is noted that CDA is the regulator established under the Ordinance of 1960. The Regulations made in exercise of powers conferred under the Ordinance of 1960 prescribes the procedure for obtaining approvals/permissions/NOC etc before an allottee of the plot starts the construction. CDA being the regulator is empowered to proceed in accordance with law if there is violation of the Regulations. In the instant case the concurrent findings do not suffer from any legal infirmity. The learned counsel appearing on behalf of the petitioner has not been able to point out any misreading or non-reading. Moreover, no illegality or material irregularity has been shown to have been committed by both the Courts so as to require interference by this Court.
8.For what has been discussed above, the instant petition is without merit and is accordingly dismissed.
ZC/140/Isl.Revision dismissed.
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