MUHAMMAD SHAMS ERAM USMANI Versus KARACHI BUILDING CONTROL AUTHORITY

1. AJMAL MIAN, C.J. ‑‑By this petition, the petitioner has impugned notice dated 6‑3‑1986 issued by respondent No.3 under Sind Building Control Ordinance, 1979 calling upon the petitioner to remove the construction from Plot No.205‑D situated in Block II PECHS Karachi.

2. The brief facts leading to the filing of the above petition are that the petitioner owned the aforesaid plot which was residential, measuring 1,000 square yards. It is the case of the petitioner that on 27‑4‑1985 he applied for permission to respondent No.l to convert the plot into commercial use. It is further the case of the petitioner that the above permission was granted subject to the payment of Rs.3 lacs, out of which Rs.l lac was paid and the balance of Rs.2 lacs was to be paid in two installments. However, the case of the respondent is that the above permission was conditional subject to the petitioner's obtaining no objection from the Ministry of Works, Government of Pakistan. Be that as it may, it appears that the petitioner submitted a building plan on 5‑11‑1985 which according to them was neither approved nor rejected within a period of 60 days in terms of Regulation 13 (3) of the Karachi Building and Town Planning Regulations, 1979 (hereinafter referred to as the Regulations), and, therefore, it stood approved. It is also the case of the petitioner that in terms of the above Regulations he sent a notice dated 16‑1‑1986 for the commencement of the construction of the work and thereafter started constructing the building.

2. On the other hand the case of the respondent is that prior to the above notice dated 16‑1‑1986 the petitioner through their application dated 4‑12‑1985 applied for permission to construct a retaining wall which permission was declined by respondent No.3 by his letter dated 18‑12‑1985 and therefore the petitioner was not entitled to commence the construction. However, it may be pointed out that the petitioner of the above letter and that the respondents has denied the receipt have not been able to produce any documents to indicate that factually the above letter was delivered to the petitioner. In this view of their matter, we will have to proceed on the assumption that the above meter was not delivered. It must, therefore, follow that after the expiry of 60 days from the date of submission of the plan, the same e deemed to have been approved to the extent to which it A he Regulations or the shall does not contravene any of the provisions of the Regulations Master Plan or Site Development Scheme. The respondents are entitled to take action against the petitioner on the ground that the proposed construction is in violation of the Regulation or the Master Plan or Site Development Scheme but they cannot take action against the petitioner on the ground that they had commenced the construction of the building without approval.

3. 3_ It was then contended by Mr. Mirza Yaqoob Baig that even otherwise the petitioner could not have commenced the construction before the plot would have been commercialized, which could not have been done without the permission of the Ministry of Works, Government of Pakistan. In this behalf it will suffice to observe that the respondents have not taken action against the petitioner on the above ground. If there is any such requirement, it will be open to the respondents to take action against the petitioner on the above ground in accordance with law.

4. With the above observations the petition stands disposed of with no order as to costs.

5. M. Y. H. / M‑5961 K. Petition allowed.