ABDUL WAHEED BUTT Versus ASMA

ORDER

1. AJMAL MIAN, CJ.‑‑ This is an application for grant of an injunction restraining the private respondents from raising construction in deviation of the approved building plan as the petitioner's property is adjacant to the plot in question. It seems to be an admitted position that private respondents predecessor‑in‑interest got building plan approved for ground plus one and they have already raised ground plus 3 and they are in the process of raising the 4 th floor.

2. It has been contended by Mr. Khalid M. lshaque vehemently that the petitioner has not come with clean hand inasmuch as he has opened the windows on the side of the private respondents' plot which he could not have done and secondly in the absence of any violation of any easement right as to the light or air, the petitioner has no right to maintain the above application.

3. On the other hand, Mr. Munir A. Malik, learned counsel for the petitioner, has submitted that the K.DA. had issued a notice for demolition of the unauthorised construction, whereupon the private respondents have filed Suit No.321 of 1989 in the Court of Nth Senior Civil Judge, East Karachi and obtained a status quo order and thereafter speeded up the constructions. It has been further submitted by him that the plaintiff has not opened any window on the side of the private respondents but whatever windows are there they are very old and existed at the time of the transfer of the evacuee property to the petitioner.

4. Mr. S.H. Kizalbash, who is appearing for the official respondent, supported the learned counsel for the petitioner and contended that under the cover of status quo order unauthorised construction is raised by the private respondents in violation of the building bye‑laws and approved building plan.

5. We cannot be unmindful of the fact that it has now become common practice in the Karachi city that unauthorised constructions in the form of multistoreyed buildings are being raised which affect the neighbours and the other residents of the locality as the supply of water and electricity are affected. There seems to be a marked distinction between a right to maintain a suit and right to maintain a constitutional petition. In the former case a plaintiff should have a legal right, whereas in the latter case a petitioner may not have personal legal right in stricto senso, but may have some interest in the subject‑matter of the writ petition. In the instance case as pointed out hereinabove the private respondents have raised and are still raising construction in violation of the approved building plan and the building bye‑laws. Respondent No.3 as a statutory functionary under the Sind Building Control Ordinance, 1979, is under the statutory duty to ensure the compliance of the building bye‑laws. It cannot be said that the petitioner has no interest in ensuring that respondent No.3 discharges the above statutory duty. One of the prayers in the petition is that respondent No.3 be directed to demolish unauthorised constructions put up by the private respondents. We, therefore, are of tentatively view that prima facie the petitioner has locus standi to maintain above petition. We are also inclined to hold that it is a fit case, in which a prohibitory interim injunction should be granted.

6. We would, therefore, restrain the private respondents from raising any further constructions.

7. A.A./A‑001/K Application granted.