JAMIL AHMED vs KARACHI BUILDING CONTROL AUTHORITY And Other

SABIHUDDIN AHMED, J.---The petitioners appear to be aggrieved by an Order of respondent No. l

(KBCA) purporting sealing of a building known as "Decent Complex" in KDA Scheme 33, Gulzar-e- Hijri,

2. The undisputed facts appear to be that the site on which the Complex was constructed was a Flat site in terms of the Master Plan mean only for construction of Residential Apartments. The owner submitted a Building Plan for construction of. Apartments, which was duly approved by the respondent No. 1. Thereafter, however, he started constructing, certain shops and made other violation of the Building Plan i.e. Covered up the area reserved for amenities. Accordingly the impugned order was passed by the respondent No. I.

3. Mr. Dasti Muhammad Ibrahim, learned counsel for the petitioner vehemently argued that the construction raised by the petitioners was not in violation of the approved plan. According to him, the petitioners had submitted a Revised Plan dated 9-8-1995 and another Completion Plan dated 13-8-1995 purporting to cover-up the illegalities by seeking regularization of the construction raised. He further argued that despite receipt of these plans, the petitioner did not receive any communication from the respondent and therefore, was entitled to treat the Revised Plan as duly approved in terms of Regulation No. 13(3) of the Building Regulation. As such, he contended that it could not be urged that the construction in question was contrary to the approved plan. He relied upon a judgment of this Court reported in Muhammad Shams Eram Usmani v. Karachi Building Control Authority and 2 others (1989 CLC 193) in support of the proposition of law. Learned counsel further argued that the petitioners were bona fide purchasers of the shops in question and, therefore, the same could not be sealed after they had acquired possession/proprietary right in the same.

4. Mr. Raja Sikandar Khan, learned counsel for the respondent, on the other hand, urged that the petitioner could not be treated as bona fide purchasers because they had entered possession in flagrant violation of the requirements of section 6 of the Sindh Building Control Ordinance i.e. Without an Occupancy Certificate being granted by respondent No. 1 and therefore, the action of sealing was perfectly justified. He placed reliance upon a judgment reported in Muhammad Saleem and 5 others v. Administrator, Karachi Materopolitan Corporation and 2 others (1998 CLC 1952).

5. As regards the first contention of Mr. Dasti Muhammad Ibrahim learned counsel seem to be right to the extent that Regulation No. 13(3) of the Building Regulations creates a presumption that if no order is passed on an application for permission to carry out building works within 60 days from its receipt, it should be deemed to have been sanctioned. This, however, as is apparent form bare reading of the text and case-law cited by learned counsel himself, is subject to the important qualification that such application/plan must not contravene the provisions of the Regulations, the Master Plan or the Site Development Plan. In the instant case, it is not disputed that the Master Plan only stipulated construction of Apartments on the plot in question and in any case the area reserved for amenities could not be converted into Flat site. Therefore, we are unable to share the view that so-called Revised Plan could be deemed to be approved.

6. It is equally important to bear in mind the Regulation No. 13(3) stipulates that once plan is being to have been approved the builder can only proceed to carry out building works after notice to the concerned authorities. This, prima facie, implies that the above provision can be invoked only when the builder proposed to alter his plan and we are extremely doubtful if it can be extended to a situation where violation of law has already been committed and the builder is only attempting to confer a cloak of legality on action taken by him in defiance of law.

7. We are also not impressed by the contention that the petitioners could be treated as the bona fide purchasers in any sense of the word when their occupation, without an Occupancy Certificate in defiance of the mandatory provision of law has not been disputed. The Division Bench judgment by Mr Raja Sikandar Khan Yasir covers the case and is binding upon us. Mr. Dasti Muhammad Ibrahim attempted to distinguish it by stating that in the reported case no plan had even existed but we are of the view that such distinction, if any, goes against the petitioners because in the instant case he attempted to seek validation of his own illegal acts.

8. In view of the above, we find no force in these petitions and the same are dismissed with costs.

H.B.T./J-25/K