BENEDICT I. DE SOUZA Versus KARACHI BUILDING CONTROL AUTHORITY

1. The building consisting of four flats on Plot No. SB2/57 Saddar Karachi was owned by one Abdur Rahim Chagla who under separate conveyance deed transferred each block of flat independently to different persons. Flat No.l was purchased by M.R. Lakhani, Flat No.2 by Khurshid Kakobad Kapadia, Flat No.3 by Messrs Pecus and Flat No.4 was purchased by the petitioner jointly with Miss E. Frietes. All the deeds of conveyance were separately registered on 4‑7‑1983. All these blocks of flat were privately subdivided by Chagla and in the conveyance deed this fact was specifically mentioned and No. 57/1, 57/2, 57/3 and 57/4 are assigned to each flat. The respondent No.3 purchased Flat Nos.l and 2. Flat No.3 is in between the flat of respondent' No.3 and the petitioner. The respondent No.3 applied for construction of a building on his portion of the property which he had purchased. The petitioner objected to it and made representation to the respondents Nos.l and 2 but it is alleged that no order was passed and the sanction for constructing the building was illegally granted to respondent No.3. The petitioner has challenged the action of the respondent No‑1 and has sought more than 12 reliefs. One of them being to declare the no objection certificate and the approval of building plan granted by respondent No.l to respondent No.3 on 10‑7‑1986 under section 6 of the Building Control Ordinance 1979 as without lawful authority and of no legal effect.

2. The respondent No.l has filed counter‑affidvait and stated that the building plan has been approved in respect of an area which has been purchased by respondent No.3 and according to law. In his counter‑affidavit the respondent No.3 has pleaded that the petitioner is not an aggrieved party, he has not dome with clean hands and the petitioner suffers from laches. The old construction was demolished on 10‑7‑1986 and the plan was approved on 10‑7‑1986 in accordance with law. The respondent No‑3 has raised construction up to three floors and at this stage no relief can be granted to the petitioner. It was pleaded that the petitioner is the owner of 1/4 privately partitioned land and construction thereon. It has been submitted that Messrs Pecus has not in any manner made any objection to the demolishing or to the construction of the building. The petitioner's flat is not even adjacent to the property of the respondent No. 3 and that no provision of law has been violated by him.

3. We have heard the petitioner and the learned counsel for the parties. The main contention of the petitioner is that the plot was not officially partitioned and therefore having purchased 1/4 share and construction thereon he has right/title and interest in the entire plot till such time the land is officially partitioned and therefore without his consent the plan for construction could not have been approved and sanctioned by the respondent No.l. At this stage it may be pointed out that at the time of filing the petition the petitioner did not file a copy of the deed of conveyance from which his title flows. The respondent No.3 filed an application for direction to the petitioner to file the said sale deed but it was opposed by the petitioner. The respondent No.3 however obtained and filed photo copy and filed the same. The petitioner also produced the same at a later stage. From the sale deed it is clear that the property was owned by one Abdul Rahim Chagla who conveyed it to four persons separately. Each of the persons including the petitioner were occupying one flat as tenants and to the extent of their occupancy the property was transferred to them separately. In the sale deed it has clearly been mentioned that the building was in occupation of four tenants each occupying one separate block and as all of them had desired to purchase one block each in their own occupation the seller agreed to sell and vendee agreed to purchase the said marked block of the said building, "officially undivided but privately divided." A plan of the entire property demarcating the share of each purchaser was also annexed with the conveyance deed. The property which was purchased by the petitioner is numbered 57/4. Therefore from the very beginning the property purchased by the petitioner and other purchasers was clearly demarcated and specified. As stated earlier the sale deed clearly mentioned that the property was officially undivided but privately divided. This sale deed is the basis of the claim of the petitioner.

4. During his argument the petitioner has not complained that by raising the construction according to the approved plan the petitioner's right of air, light and privacy shall be disturbed. His sole ground of attack is that till such time the property is not officially partitioned the respondent No.l cannot approve the plan as the petitioner has right in the plot of land jointly with other purchasers. This is a disputed question of fact and it cannot be decided in this petition. Mr. K . A . Wahab the learned counsel for the respondent No.3 has referred to 1985 S C M R 1372, 1983 SCMR 732, and 1979 S C M Ri 200 and conteded that disputed questions of facts cannot be decided in a Constitution Petition. The contention of the learned counsel has force. The dispute raised by the petitioner requires evidence determine the extent of right of the purchasers and their interest ink the property. The question will also arise whether the plot of land was privately divided and each purchaser had a separate share so far construction and plot of land is concerned. These disputed fact can be decided only after recording evidence of the parties. Even otherwise the petitioner before challenging the‑ action of respondent l and 2 should establish his right in the disputed land. Such questions of fact cannot be agitated and decided in a constitution petition.

5. The petitioner contended that the plan has been approved it respect of the entire Plot No. 57. However, Mr. Mirza Yaqoob Baig the learned counsel for the respondent No.l has pointed out that the plan was approved in respect of building portion on a Plot No.57 S ' Saddar Bazar, Karachi and it has not been approved in respect the entire plot. The petitioner has submitted a long list of authorities, but as in our view the petition is not competent, we do not feel it~ necessary to refer to them. For these reasons the petition by a short order was dismissed with no order as to costs.

6. A . A . / B‑60/ K Petition dismissed