BENEDICT F.D' SOUZA vs KARACHI BUILDING CONTROL AUTHORITY and 3

ORDER

1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought, against dismissal by the High Court, of a Constitutional petition filed by the petitioner.

2. The petitioner who has appeared in person has in a very outset stated with respect that the High Court has fallen into errors in stating the facts. It has, therefore, become necessary to reproduce relevant part of the impugned judgment which reads as follows:- "The building consisting of four flats on plot No,SB 2/57 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,1 was purchased by M.R.Lakhani, Flat No,2 by Khurshid Kakobad Kapadia, flat No,3 by M/s.Pecus and flat No,4 was purchased by the petitioner jointly with Miss E.Frietes. All the deeds of conveyance were separately registered on 4-7-1953. All these blocks of flats were privately subdivided by Chagla and in the conveyance deed this fact was specifically mentioned and Nos. 57/1, 57/2, 57/3 and 57/4 were assigned to each flat. The respondent No,3 purchased flats Nos.1 and 2.Flat No,3 is in between the flat of respondent No,3 and the petitioner.

3. 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.1 & 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,1 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.

4. "The respondent No,1 has filed counter affidavit 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 come with clean hands and the petition 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.

5. The respondent No,3 has raised construction upto 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 M/s. Pecus has not in any manner made any objection to the demdlishing 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.

6. "We have heard the petitioner and the learned counsel for the parties."

7. ' After hearing the petitioner on the main features of the case we asked him whether he accepts the version of the respondents' side that the property stood privately divided and demarcated and further that so divided the concerned parties were in exclusive possession of their respective parts, he answered in the negative. There are also other serious factual disputes between the parties. It was in this context that the learned Judges made the following observations in the concluding part of the impugned judgment:-- "The dispute raised by the petitioner requires evidence to determine the extent of right of the purchasers and their interest in 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. The disputed facts can be decided only after recording evidence of the parties.

8. Even otherwise the petitioner before challenging the action of respondents Nos.1 and 2 should establish his right in the disputed land. Such questions of fact cannot be agitated and decided in a Constitution petition.

9. "The petitioner contended that the plan has been approved in respect of the entire plot No,57.

10. However, Mr.Mirza Yaqoob Baig the learned counsel for the respondent No,1 has pointed out that the plan was approved in respect of building portion on plot No,57 SB Saddar Bazar Karachi and it has not been approved in respect of 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."

11. After hearing the petitioner on the aforestated view of the High Court, we are of the opinion that in the circumstances of the case the filing of the Constitutional petition in the High Court was not the proper remedy. Factual controversies, involved in the case, could not be solved without -a fulifledged trial. Accordingly we find that the approach of the High Court in its discretionary writ jurisdiction to decline relief to the petitioner, was unexceptionable. No justification has been made out for grant of leave to appeal. The same is refused.