RAB NAWAZ Versus KARACHI BUILDING CONTROL AUTHORITY

ORDER

SAEEDUZZAMAN SIDDIQUE, C.J.‑‑‑ This petition under Article 199 of the Constitution is filed by the petitioner with the following prayers:‑‑

"1. To declare that the impugned notices are mala fide, illegal and without jurisdiction.

2. To issue writ of common directing the respondents Nos.1 and 2 to perform their statutory duties by stopping and restraining the respondents Nos.3 and 4, their agents, employees, servants, labourers, artisans, architects and all other persons and persons acting through, under or in trust for them or any of them from raising any construction of whatever nature or kind it may be, within the space required according to Building Rules and Building Bye‑Laws to be left compulsorily open and remove, demolish all the building structures so far raised or may be raised till final disposal of this petition within the spaces required to be left open compulsorily, on all sides of the plot of land bearing No.146‑2, more particularly on the rear side facing the plot of the petitioner and the sides facing 50 feet wide road and the plot No.147‑B.

3. To issue writ of common restraining the respondents Nos. 1 and 2 from implementing or bringing into action the threats extended in their impugned respective notices, dated 12‑3‑1991 and' 8‑12‑1990.

4. This Hon'ble Court may further be pleased to grant any other or further relief or reliefs which this Hon'ble Court may deem fit or proper in the circumstances of the case:'

It is contended by the learned counsel for the petitioner that the respondents 3 and 4 who own the adjoining plot have started raising construction on the compulsory open space and as such the rights of the petitioner have been interfered with. It is also contended by the learned counsel that a complaint was made by him to Building Control Authority who are responsible for maintaining the building control throughout the city, but they have failed to take any action against them, and on the contrary, they have issued a notice to the petitioner alleging that the petitioner has encroached upon the land.

It is an admitted position in the case that the petitioner has already riled a Civil Suit against respondents Nos. 3 and 4 being Suit No.77 of 1991 in which same allegations have been made that respondents Nos. 3 and 4 have raised construction in violation of the Building Rules. The aforesaid suit is still pending before the Civil Court, and it is also not disputed that an interim application for injunction filed in Court was dismissed by the Civil Court, and against that order appeal was filed, which was also dismissed. But no revision has been riled against the order of the appellate Court. It is quite clear from the facts stated in the petition, and the documents riled along with it that there is a serious controversy in the case with regard to the facts. The petitioner has alleged that respondents Nos.3 and 4 have raised construction on the compulsory open space in between the house of petitioner and respondents and 4. The respondents Nos.1 to 4 on the other hand claim that the petitioner has encroached upon a portion of the plot of respondents Nos.3 and 4 which has the effect of reducing the compulsory open space between the two plots. I these circumstances, the petitioner is not entitled to file petition under Article 199 of the Constitution. The petition is dismissed summarily.

As a result of dismissal of main petition, the miscellaneous application is also dismissed.

AA./R‑183/K Petition dismissed.