SALEH MUHAMMAD Versus HAROON
MAMOON KAZI, J.‑‑ By this common judgment we propose to dispose of C.P. No.D‑719/89 and C.P. No.D‑229/90 as the subject‑matter of the two petitions is the same and the parties involved therein are also common.
2. The petitioner in C.P. No.719/89 is the owner of Plot No.75 situated on Talpur Street, Garden East, Karachi where a double‑storeyed building has been constructed. The grievance of the petitioner is that respondents No.1 and 2 who are owners of Plot No.69 are constructing a multi storeyed building on the said plot. The petitioner is aggrieved because there is a distance of about 100 feet between the plots respectively owned by the petitioner and the respondents.
3. The case of the petitioner in C.P. No.D‑719/89 is that although the Karachi Building Control Authority, respondent No.3, constituted under the Sind Buildings Control Ordinance, 1979 had granted planning permission to respondents Nos. 1 and 2 through the Deputy Commissioner, Karachi South, to construct ground floor plus three storeys on Plot No.69, but subsequently in pursuance of orders issued by the Board of Revenue, Sindh, Hyderabad, the said permission was withdrawn and respondents Nos.1 and 2 were permitted to construct only ground plus ,one floor on the said plots, but notwithstanding such restrictions the said respondents are continuing the construction of a building on the said plot. It is pertinent to point out that according to the petitioner in C.P. No.D‑719/89, the construction work is being carried out by the said respondents without submitting a building plan for approval to the Karachi Building Control Authority, although the same is not admitted by the said respondents.
4. The grievance of the petitioners in C.P. No.D‑229 of 1990 is mainly directed against the Karachi Building Control Authority, respondent No.2 in. the said petition as according to them, the respondent No.2 does not possess any lawful authority to withdraw the permission earlier granted by it for construction of ground floor plus three storeys on the said plot.
5. Constitutional Petition No.D‑229/90 has been resisted by the Karachi Building Control Authority, according to which, the petitioners in the said petition have failed to submit a building plan for its approval without which no construction could be started by them on the said plot. The said respondent has also placed before us certain documents which show that although permission had been originally granted for construction of ground floor plus three storeys through the Deputy Commissioner, Kal achi South by the said respondent vide his letter, dated 1‑6‑1988, but subsequently vide another letter, dated 22‑8‑1988, the petitioners in C.P. No. D‑229/90 were informed that their request for grant of permission for‑four storeyed building could not be granted.
6. So far as the grievance of the petitioner in C.P. No.D‑719/89 is concerned, we would like to point out that section 7‑A of the Sindh Buildings Control Ordinance, 1979 empowered the Karachi Building Control Authority to demolish the construction at the cost of the builder or the owner as the case may be m case of violation of section 6(1) of the said Ordinance. Section 6(1) of the said Ordinance prohibits construction of a building without a building plan approved in a manner prescribed by the rules framed under the said Ordinance. Since from the affidavit filed on behalf of the Karachi Building Control Authority, it can clearly be spelled out that the construction has been commenced by the petitioners in C.P. No.D‑229/90 without an approved building plan, the Karachi Building Control Authority has sufficient powers under section 7‑A of the aforesaid Ordinance to take action against an violations contemplated by such section. From the documents which have been riled alongwith the said affidavit, it appears that by letter, dated 1‑6‑1988 no‑objection had been granted to the owners of Plot No.69 for the proposed construction of ground floor plus three storeys on the said plot but the letter, dated 22‑8‑1988 written by the Deputy Commissioner, Karachi South to the petitioners in C.P. No.D‑229/90 further indicates that ultimately the request was not granted in view of the orders passed by the Board of Revenue Sindh, Hyderabad restricting the permission only to ground floor plus one storey. Mr. Syed Saeeduddin Nasir, learned counsel for the petitioners in C.P. No.D‑229/90 has argued that once an application for permission to carry out building works is received by the Authority and orders are not passed on such application within sixty days, the building plan would be deemed to have been sanctioned by the Karachi Building Control Authority. Reference in this respect has been made by the learned Counsel to Rule 13(3) of the Karachi Building & Town Planning Regulations (Part‑I) which provides as follows:‑
"13. After the receipt of an application for permission to carry out building works, the concerned Authority shall, within sixty days:
(1) ........................
(2) ........................
(3) If no order is passed on an application within sixty days of its receipt, it shall be deemed to have been sanctioned to the extent to which it does not contravene the provisions of these regulations, or the Master Plan or site Development Scheme, if any, and after giving due notice on prescribed Form to the concerned Authority may proceed to carry out the said building works at any time within one year from the date of delivery of such notice."
7. In our view, the contention is completely devoid of force because Mr. Syed Saeeduddin Nasir has not been able to show that any application for permission in a prescribed manner had been made by the petitioners to be Karachi Building Control Authority in accordance with the said regulations. Mr. Syed Saeeduddin Nasir did refer to a copy of a building plan which has been filed alongwith the said petition as Annxure‑P/2 but it may be pointed out that the said plan appears to have been submitted by the petitioners under fart‑11 of the Karachi Building and Town Planning Regulations for planning permission and not under the provisions of Building Regulations Part‑1. Since no building plan as required under the said Regulations had been submitted by the petitioners, the question of operation of Regulation 13(3) in the case does not arise. .
8. The next contenti6n of Mr. Syed Saeeduddin Nasir was that once no` objection was granted to the petitioners for building ground floor plus three storeys, the same could not be withdrawn by giving retrospective operation to the orders passed by the Board of Revenue, Sindh. We also find no force in this contention because admittedly the petitioners after grant of no objection vide letter dated 1‑6‑1988 had not taken any further steps which were not possible for them to retrace as even a proper application under the relevant Regulations for sanction of the building plan had not been made by them. It is also pertinent to point out that it is the petitioners' own case that permission was withdrawn by the Deputy Commissioner, Karachi* South vide his letter, dated 22‑8‑1988 when application for approval of proposed building plan submitted by the petitioners with the office of the Deputy Commissioner, South Karachi was still pending for the required permission. Since the building plan for sanction had yet to be submitted by the petitioners to the Karachi Building Control Authority and no construction on the said plot had yet begun, the Deputy Commissioner, South Karachi and the Karachi Building Control E Authority were within their powers to withdraw the no‑objection earlier granted by them on the application of the petitioners. We, therefore, find no force in the second contention of Mr. Syed Saeeduddin Nasir as well.
9. In the result, C.P. No.D‑229/90 is dismissed. So far as the C.P. No.D 719/89 is concerned, we would like to point out that the Karachi Building Control Authority is vested with sufficient powers to demolish the construction if the same is carried out in violation of section 6(1) of the Karachi Building Control Ordinance, 1979. We, therefore, expect that if the circumstances exist warranting action under section 7‑A of the said Ordinance, the Karachi Building Control Authority will perform its duty which it is required under the said provisions of law to perform. So far as the injunction order issued by the learned Civil Court against the said Authority is concerned, a copy, thereof has been filed by the petitioners alongwith C.P. No.D‑229/90 as Annexure P/14.. Nothing can be spelled out from the said order to indicate that the Karachi Building Control Authority has been restrained from taking action under section 7‑A of the aforesaid Ordinance. Consequently, subject to the aforesaid observations ‑ made by us, C.P. No.D‑719/89 also stands disposed of. The parties arc left to bear their own costs. C.M.As. No.3713/91 and 2371/89 in C.P. No.D‑719/89 also st4nd disposed of as the same have become infructuous.
A.A./D‑100/K Order accordingly.