IN THE HIGH COURT OF SINDH

AT KARACHI

Const. Petition No. D- /2018

Muhammad Zubair Motiwala ……………………………. ….Petitioner

VERSUS
Clifton Cantonment Board & Another ……………………Respondents

INDEX

S. No DESCRIPTION ANNEXED PAGES

1. Memo of petition & aff 01 to 13

2. Lease Deed A 15 to 35
3. Approval letter dated 03-08-2018 B 37
4. Letter dated 17-08-2018 C 39
5. Letter dated 28-08-2018 D 41
6. Notification SRO 175(1)/82 E 43
7. App & Aff for Urgent hearing 45 to 47
8. App & Aff for exemption 49 to 51
9. App & Aff for Stay 53 to 55
10. Vakalatnama 57

Karachi.
Dated:-03-09-2018 Advocate for the petitioner
 Page # 01

IN THE HIGH COURT OF SINDH

AT KARACHI
(Extra Ordinary Constitutional Jurisdiction)

Const. Petition No. D- /2018

Muhammad Zubair Motiwala
Son of Ameen Motiwala
Muslim, Adult Resident of
C-23, Dhorajee Colony,
Karachi …………………..…………………………….…….Petitioner

VERSUS
1. Clifton Cantonment Board
Through its Executive Officer,
Having office at
CC-38, Street No 10,
Kh-e-Rahat, Phase-VI, DHA,
Karachi.

2. Additional Cantonment Executive Officer

Having office at
CC-38, Street No 10,
Kh-e-Rahat, Phase-VI, DHA,
Karachi.……………………………………………………..Respondents

CONSTITUTION PETITION UNDER ARTICLE 199,

OF THE CONSTITUTION OF ISLAMIC REPUBLIC
OF PAKISTAN, 1973.
Respectfully shewith:-

1. That the KDA Sch-5, Kehakshan, Block 8 & 9, Clifton, Karachi were
included in the municipal limits of the Respondent No 01 / Clifton
Cantonment Board in terms of Notification SRO 207/(1)83 dated 27-
02-1983. The effect of including area in Cantonment by Notification
is that such area shall thereupon become subject to the provisions of
the Cantonments Act and to all other enactments for the time being
in force through out the Cantonment.
 Page # 03

2. That the petitioner is lessor of Plot No F-8, Block-9, KDA Sch-5,

Clifton, Karachi by registered lease deed but for municipal
jurisdiction, area of Plot falls in the limits of Respondent No 01. The
petitioner on 24-05-2018 applied for approval of building plan,
which was accorded by the Respondent No 01 and such information
regarding approval was conveyed to the petitioner vide its letter No
CBC/BC/8459 dated 03-08-2018. (Photostat copies of lease deed
and approval letter dated 03-08-2018 are enclosed and marked as
annexure A & B).

3. That the Respondent No 02 without jurisdiction issued notice under

section 185 of the Cantonments Act dated 17-08-2018. The notice
256 of the Cantonments Act, 1924 dated 28-08-2018 has not been
issued by the Respondent No 01 and 02 as well but it has been signed
some body else unauthorizedly. The law does not empower to any
officer to issue notices under sections 185 & 256 of the Cantonments
Act, 1924. This is misuse of official powers as the law does not
permit the Respondents to issue such notices and the same are coram
non judice. This is settled principle of law that if initial order or
notice is void, all subsequent proceedings, orders or superstructure
built on the same is also to be void. This is universally admitted
principle that if the things are not done as provided in law to be
done, the entire action taken in such manner is null and void and
have no legal effect. (Photostat copies of notices dated 17-08-2018 &
28-08-2018 are enclosed and marked as annexure C & D).

4. That the Respondent No 02 on the strength of two aforesaid illegal

notices are creating harassment and threatening for action, for
which the law does not permit them. It is fundamental rights of the
petitioner that he be dealt with in accordance with law. The public
functionary is bound to act strictly in accordance with law and
interference of this Honorable Court is just and necessary for
implementation of law in letter and sprit. There is severe
 Page # 05
apprehension that the Respondents shall take any severe adverse
action against the petitioner without having lawful authority.

5. That the petitioner undertakes in case during the construction work,

if deviation is made, on completion, the request for regularization
shall be made to the Respondent No 01. The powers of the Board has
wider power to compound unauthorized construction in law on
Board’s power for regularization no restriction has been laid down.
The Board has authority to condone any illegality and regularize the
same accepting composition fee. The reliance is made on order of the
learned Division Bench of this Honorable Court delivered in case
[Sibt-e-Mujtaba Kazmi V/s. Faisal Cantonment Board].

6. That in the law of Cantonment, the powers have been divided

between into two, the Board and the Cantonment Executive Officer.
The powers under sections 73, 74, 82 first proviso, 84 (4), 91 (2), 92,
94, 95, 103, 108, 133, 141, 152, 153, 155, 157, 158, 170, 215, 241,
244 & 259 (2) have been conferred upon the Cantonment Executive
Officer and in such a case, in fact, the Cantonment Executive Officer
can exercise powers conferred upon him, while the powers under
sections 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 71, 72, 75, 76, 77, 77A,
81, 82(3), 82 (5), 83, 84, 86, 89, 91, 93, 97, 98, 99, 100, 101, 102,
107 (3), 109, 110, 112, 113 (b), 113 (3), 114, 115, 116, 117, 117A,
119, 122, 123, 124, 126, 127, 129, 130, 131, 132, 134, 135, 136, 137,
138, 139, 140, 142, 143, 144, 145, 146, 147, 149, 150, 156, 161, 162,
164, 166, 168, 169, 171, 172(2), 173, 174, 177, 178, 179, 181, 182,
183, 183A, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195,
196, 197, 198, 199, 200, 201, 202, 203, 204(2), 206, 208, 209, 210,
212, 216, 217, 218, 219, 221, 222, 223, 224, 225, 226, 227, 228, 229,
230, 231, 232, 234, 234 (A), 234 (b), 253, 255, 256, 257, 260, 261,
262, 264, 266, 267, 269, 270, 273, 282, 283, 286A & 289 have been
conferred upon the Board and in such a case, the Cantonment
Executive Officer can exercise these powers, if delegated by the
Board and notified by the Federal Govt. in official gazette.
 Page # 07

7. That under section 286B (2) of the Cantonments Act, it is power of

the Board with the previous approval of the Federal Govt. by
resolution, delegate all or any of its powers under the Cantonments
Act or the rules made thereunder to any of its officer subject to such
conditions or limitations as may be specified, in the resolution. For
convenience of this Honorable Court, section 286B (2) of the
Cantonments Act is reproduced below:-

The Board may, with the prior approval of the Federal

Government, by resolution, delegate all or ay of its powers
under this Act or the rules made thereunder to any of its
officers subject to such conditions or limitations as may be
specified, in the resolution to power conferred upon Board.

8. That in case, if powers under section 286B (2) of the Cantonments

Act are delegated by Board to the officer, such delegation must be
notified in the official gazette as was done in the case of Karachi
Cantonment Board. The Karachi Cantonment Board delegated its
powers under sections 126, 135, 140, 145 185 & 194 to the
Cantonment Executive Officer to be exercised and the same were
duly notified in terms of section 286B of the Cantonments Act in the
official gazette. (Photostat copy of Notification SRO 175(1)/82 dated
21-02-1982 is enclosed and marked as annexure E).

9. That power to issue notice under section 185 & 256 of the
Cantonments Act lies with the Board and the officer can exercise
powers to issue notice, if the powers were delegated to him and duly
notified in the official gazette. For convenience, the sections 185 &
256 of the Cantonments Act are reproduced below.

185. Power to stop erection or re-erection or to demolish.

“A Board may, at any time, by notice in writing, direct the

owner, lessee or occupy of any land in the Cantonment to
stop the erection or re-erection of a building in any case in
which the Board considers that such erection or re-
erection is an offence 184, and may in any such case or in
any other case in which the Board considered that
erection or re-erection of a building is an offence under
 Page # 09

section 184, within 12 months of the completion of such

erection or re-erection in the like manner direct the
alteration or demolition, as the thing necessary, of the
building, or any part thereof, so erected or re-erected”.

Section 256. Power of Board in case of non compliance

with notice, etc.

In the event of non compliance with the terms of any

notice, order or requisition issued to any person under this
Act, or any rule or bye-law made thereunder, requiring
such person to execute any work or to do any act, it shall
be lawful for the Board, whether or not the person in
default is liable to punishment for such default or has been
prosecuted or sentenced any punishment therefore, after
given notice in writing to such person, to take such action
or such steps as may be necessary for the completion of the
act or work required to be done or executed by him, and
all the expenses incurred on such account shall be
recoverable by the Board.

10. That from the perusal of above two sections, now legal position is
clear that issuance of notices is power of the Board and not the
Respondents, while the notice under section 256 of the Cantonment
Board has neither been signed by the Cantonment Executive Officer
nor the Executive Officer and this is absolute malafide and clear
harassment. The Respondents can only exercise such powers, if the
same were delegated to them by the Board, while admittedly, the
Board never delegated its power to the Respondents under sections
185 & 256 of the Cantonments Act, therefore very issuance of notices
dated 17-08-2018 & 28-08-2018 annexed above as annexure C & D
issued by the Respondent No 02 under section 185 and by some
unauthorized person under section 256 of the Cantonments Act are
without jurisdiction, lawful authority and same are liable to be
struck down and declare to be null and void.

11. That no adequate efficacious remedy in law is available to the

Petitioner except this Const Petition.

12. That there is no impugned order.

13. That no other petition has been filed prior to this nor any legal
remedy has been availed
 Page # 11

P R A Y E R
The petitioner therefore prays for following directions: -

a) To declare that the Respondents are not Competent in law to serve

notice under section 185 and 256 of the Cantonments Act, 1924
unless the powers are delegated by Board and duly notified in the
official gazette by the Govt. of Pakistan.

b) To declare that notices dated 17-08-2018 issued by Respondent No

02 under section 185 of the Cantonments Act and notice dated 28-
08-2018 issued under section 256 of the Cantonments Act by the
unauthorized person annexed with the memo of petition as annexure
C & D are without jurisdiction, abio initio and having no legal
effect and not binding for the petitioner.

c) To direct the Respondents to submit its authority under which they

have authority to issue notice under section 185 & 256 of the
Cantonments Act, 1924.

d) Permanent injunction restraining therein to the Respondents, its

officials, subordinates and all persons working for them and on their
behalf from taking action on the strength of notices dated 17-08-2018
& 28-08-2018, annexed with the petition as annexure C & D and
from create harassment in any manner.

e) Cost of the Petition.

f) Any other equitable better relief (s) as this Honorable Court may
deem fit and proper under the circumstances of this petition.

Petitioner

Karachi
Dated:03-09-2018 Advocate for the Petitioner
 Page # 13

For Immediate Use

IN THE HIGH COURT OF SINDH

AT KARACHI

Const. Petition No. D- /2018

Muhammad Zubair Motiwala ……………………………. ….Petitioner

VERSUS
Clifton Cantonment Board & Another ……………………Respondents
AFFIDAVIT

I, Muhammad Zubair Motiwala son of Ameen Motiwala, Muslim, adult,

resident of C-23, Dhorajee Colony, Karachi do hereby state on oath as
under:-

1. That I am the petitioner in above matter, as such am fully conversant with

the facts thereof. The accompanying petition has been drafted and filed by
my counsel under my specific instructions, contents therein are true and
correct.

2. That for the sake of brevity, I adopt the contents of accompanying petition
as an integral part and parcel of this affidavit and in order to avoid
duplication do not repeat the same.

3. That I shall be seriously prejudiced and shall suffer an irreparable loss,

until accompanying application is allowed.

4. That whatever stated above is true and correct to the best of my

knowledge information and belief.

Karachi
Dated: 03-09-2018 DEPONENT
CNIC # 42201-5790410-3
Cell No. 0300-8227122
 Page # 45

IN THE HIGH COURT OF SINDH

AT KARACHI

Const. Petition No. D- /2018

Muhammad Zubair Motiwala ……………………………. ….Petitioner
VERSUS
Clifton Cantonment Board & Another ……………………Respondents

C.M.A. /2018
APPLICATION UNDER CHAPTER III-A
VOLUME V-B SINDH CHIEF COURTS

On consideration of facts and grounds disclosed in the accompanying

affidavit as well as in the memo of petition, it is most respectfully

prayed on behalf of the petitioner above named that this Honorable

Court may be pleased to treat this matter as most urgent and hear the

main petition on -09-2018 as the Respondent No 02 is harassing and

threatening the petitioner for taking adverse action on the strength two

notice dated 17-08-2018 and 28-08-2018 which have been issued

without lawful authority. There is severe apprehension that the

Respondents shall not act strictly in accordance with aw for which, the

petitioner shall suffer.

Karachi.
Dated: 03-09-2018 Advocate for the
Page # 47
Petitioner
 For Immediate Use

IN THE HIGH COURT OF SINDH

AT KARACHI

Const. Petition No. D- /2018

Muhammad Zubair Motiwala ……………………………. ….Petitioner
VERSUS
Clifton Cantonment Board & Another ……………………Respondents
AFFIDAVIT

I, Muhammad Zubair Motiwala son of Ameen Motiwala, Muslim, adult,

resident of C-23, Dhorajee Colony, Karachi do hereby state on oath as
under:-

1. That I am the petitioner in above matter, as such am fully conversant with

the facts thereof. The accompanying application for urgent hearing has
been drafted and filed by my counsel under my specific instructions,
contents therein are true and correct.

2. That for the sake of brevity, I adopt the contents of accompanying

application as an integral part and parcel of this affidavit and in order to
avoid duplication do not repeat the same.

3. That I shall be seriously prejudiced and shall suffer an irreparable loss,

until accompanying application is allowed.

4. That whatever stated above is true and correct to the best of my

knowledge information and belief.

Dated: 03-09-2018 DEPONENT

CNIC # 42201-5790410-3
Cell No. 0300-8227122
 Page # 49

IN THE HIGH COURT OF SINDH

AT KARACHI

Const. Petition No. D- /2018

Muhammad Zubair Motiwala ……………………………. ….Petitioner

VERSUS
Clifton Cantonment Board & Another ……………………Respondents

C.M.A. /2018

APPLICATION UNDER SECTION 151 CPC

It is respectfully submitted on behalf of the petitioner above named

that this Honorable Court may be pleased to exempt the Petitioner

from filing Original / Certified Copies of annexure A, B, C, D & E in

the interest of justice and equity as matter requires urgent hearing

and indulgence of this Honorable Court is necessary to meet the

ends of justice.

Karachi. Advocate for the petitioner

Dated: 03-09-2018

Page # 51
 For Immediate Use

IN THE HIGH COURT OF SINDH

AT KARACHI

Const. Petition No. D- /2018

Muhammad Zubair Motiwala ……………………………. ….Petitioner

VERSUS
Clifton Cantonment Board & Another ……………………Respondents
AFFIDAVIT

I, Muhammad Zubair Motiwala son of Ameen Motiwala, Muslim, adult,

resident of C-23, Dhorajee Colony, Karachi do hereby state on oath as
under:-

1. That I am the petitioner in above matter, as such am fully conversant with

the facts thereof. The accompanying application for exemption has been
drafted and filed by my counsel under my specific instructions, contents
therein are true and correct.

2. That for the sake of brevity, I adopt the contents of accompanying

application as an integral part and parcel of this affidavit and in order to
avoid duplication do not repeat the same.

3. That I shall be seriously prejudiced and shall suffer an irreparable loss,

until accompanying application is allowed.

4. That whatever stated above is true and correct to the best of my

knowledge information and belief.

Dated: 03-09-2018 DEPONENT

CNIC # 42201-5790410-3
Cell No. 0300-8227122
 Page # 53

IN THE HIGH COURT OF SINDH

AT KARACHI
Const. Petition No. D- /2018
Muhammad Zubair Motiwala ……………………………. ….Petitioner
VERSUS
Clifton Cantonment Board & Another ……………………Respondents

CMA NO. /2018

APPLICATION UNDER ORDER XXXIX RULE 1 & 2
CIVIL PROCEDURE CODE, 1908

On consideration of facts and grounds disclosed in the accompanying

affidavit as well as in the memo of petition, it is prayed that this
Honorable Court may be pleased to grant injunction restraining
therein to the Respondents from taking coercive action against the
petitioner, conduct themselves according to law and suspend
operation of impugned notices dated 17-08-2018 and 28-08-2018
annexed with memo of petition as annexure C & D which have been
issued without lawful authority.

An ad interim injunction is to be solicited meanwhile in terms of main

prayer in the greater interest of justice and equity.

Karachi.
Dated: 03-09-2018 Advocate for the
petitioner
Page # 55
 For Immediate Use

IN THE HIGH COURT OF SINDH

AT KARACHI

Const. Petition No. D- /2018

Muhammad Zubair Motiwala ……………………………. ….Petitioner

VERSUS
Clifton Cantonment Board & Another ……………………Respondents
AFFIDAVIT

I, Muhammad Zubair Motiwala son of Ameen Motiwala, Muslim, adult,

resident of C-23, Dhorajee Colony, Karachi do hereby state on oath as
under:-

1. That I am the petitioner in above matter, as such am fully conversant with

the facts thereof. The accompanying application for stay has been drafted
and filed by my counsel under my specific instructions, contents therein
are true and correct.

2. That for the sake of brevity, I adopt the contents of accompanying

application as an integral part and parcel of this affidavit and in order to
avoid duplication do not repeat the same.

3. That I shall be seriously prejudiced and shall suffer an irreparable loss,

until accompanying application is allowed.

4. That whatever stated above is true and correct to the best of my

knowledge information and belief.

Dated: 03-09-2018 DEPONENT

CNIC # 42201-5790410-3
Cell No. 0300-8227122