1993 PLP 326 (CLC)

A.A. Mohammadally Addl. A.‑G. for the State, Date of hearing: 24th December, 1991. MAMOON KAZI, J.‑‑‑The Petitioners are the owners of a plot of land bearing No.232/4 situated at GRE/Pedro D'Souza Road, Garden (East), Karachi vide letter dated 28‑4‑1986 the Deputy Controller of Buildings, Karachi Building Control Authority (respondent No.4) sanctioned the building plan submitted by the petitioners for construction of a new building on the said plot consisting of a ground floor and three additional floors and thereafter, vide letter dated 13‑10‑1986, the petitioners were permitted by Assistant Commissioner (South), Karachi, to start the construction. When the petitioners had started the construction after receipt of the requisite permission, they were ordered by respondent No.4, vide his letter dated 2‑11‑1986 to stop the construction work. It was alleged in the said letter that the structures were being erected using under size re‑ enforcement bars in the R.C.C. columns and the open space towards Plot No.233/5, was being, violated. Although the petitioners informed respondent No.4 that no deviation had been made by the petitioners from the approved plan which had been sanctioned by the said respondent, however, reference‑was also made by the petitioners to Rules 24 and 26 of the Karachi Building and Town Planning Regulation, 1979 which permitted deviation from the sanctioned building plan subject to the limitations referred to in the said Regulations, however, respondent No.4 was not impressed by such representation made by the petitioners and vide order dated 5‑2‑1987 passed by him, the approved building plan of the petitioners was cancelled with immediate effect. The petitioners filed appeal before the Additional Chief Secretary Local Government and Rural Development Department, Karachi, under section 16 of the Sindh Building Control Ordinance, 1979, but the order passed by the respondent No.4 was upheld, ride order dated 19‑10‑1987 and hence the present petition. The respondents have filed a counter‑affidavit through Assistant Controller of Buildings Zone IX‑B, respondent No.5, which shows that the petitioners had failed to comply with the instructions issued by the competent authority and consequently unauthorized structures were demolished. However, even thereafter, the petitioners persisted with further violations with the result that after issuance of a notice, building plan approved on 24‑8‑1986 was cancelled. It has once again been reiterated that the steel bars used by the petitioners were of 4/8" diameter instead of the required 5/8" as shown by them in the approved plan. The open space, which was to be left by the petitioners towards the adjoining plots, was also not in accordance with the approved plan. It may be pointed out that vide order dated 4‑11‑1988 passed by this Court, in order to resolve the controversy in regard to the alleged violations, the matter was referred to the Architects, M/s. Lari Associates, for verification and opinion, who sent their report dated 12‑3‑1990. The report shows that the allegations made by respondent No.4, in the ‑notice dated 2‑11‑1986 were correct. Mr. Khalid Ishaque, learned counsel for the petitioners has argued that notwithstanding the said violations allegedly committed by the petitioners, the action taken against them by cancellation of the building plan is not warranted by law. In this respect he has invited our attention to section 7‑A of the Sindh Buildings Control Ordinance, 1979, which provides as follows:‑ "Violation of certain provisions.‑‑‑Where the provisions of subsection (1) of section 6 are violated the building may without prejudice to any other action including sealing of the building or ejectment of the occupants be ordered by the Authority or any officer of the Authority authorized in this behalf to be demolished at the cost of the builder in the case of public buildings and the owner in other cases:" Reference has been made in section 7‑A to subsection (1) of section '(6), it is, therefore, pertinent to point out that the said section refers t o approval of a building plan and granting of no objection certificate for the construction of a building, in the prescribed manner. Learned counsel for the petitioners has also referred to Rules 24 and 26 of the Karachi Buildings and Town Planning Regulation, 1979, which provide as follows:‑ "

24. Where a person has erected or re‑erected a building which is not in conformity with the building plan sanctioned by the concerned authority in any manner whatsoever, such person shall, together with the report of completion of the building, submit a completion plan showing the building exactly as completed and the deviations made in the building from the sanctioned building plan through a licensed architect/Civil Engineer‑‑Building Technologist as the case may be on Form No.7, for consideration of the concerned authority provided it is in accordance with these regulations. 26. (1) The concerned authority shall charge for the scrutiny of building plans required to be submitted under these regulations, a fee to be known as scrutiny fee at the rates specified i5 Schedule `A'. (4) If plans of an actual building submitted after completion of such building show substantial deviations from the plans previously approved the concerned authority shall charge full fee for scrutiny of such plans in addition to other fees and charges prescribed under these regulations." It is thus, clear from the above provisions that under section 7‑A of the said Ordinance, violation of approved building plan may, without prejudice to any action including sealing of the building or ejectment of the occupants, entail a further penalty by demolition of the un‑authorized structure at the cost of the builder or the owner, as the case may be. Rules 24 and 26 reproduced above further show that if substantial deviations have been made by a builder or an owner from the plans previously approved, the concerned authority B would charge full fee for scrutiny of such plans in addition to other fees and charges prescribed under the Building and Town Planning Regulations, 1979. Thus nothing can be spelled out from the above provisions of the said Ordinance, or the Building and Town Planning Regulations made thereunder to indicate that the authority or its officers have been vested with power to cancel the approval earlier granted to the building plan for the reason for which the impugned action against the petitioner was taken. Mr. Kizilbash has, however, argued that the use of the words "without prejudice to any other action "in section 7‑A clearly indicates that the legislature intended to vest the authority with larger power than what has been specifically provided‑in the said section. We are unable to subscribe to this view because if the intention was to confer more powers than what has been clearly expressed in the said section, nothing prevented the Legislature from being more explicit in this regard. Apparently the other action contemplated by the said section would, therefore, include only such other action which may be incidental or necessary to what has been specifically provided in the said section. In any case, since Mr. Kizilbash has not been able to invite our attention to any provision in the said Ordinance or the rules and regulations made thereunder to show that the said authority was empowered to cancel the approved plan for the reasons stated in the notice of its Deputy Controller of Buildings, dated 2‑11‑1986, we are of the view that the action taken by respondent No.4, against the petitioners is unwarranted by law. If any deviation is made by a builder from the building plan approved by the authority, the same would entail action as specifically provided by section 7‑A of the said Ordinance which may include demolition of the unauthorised structure by the said authority, but the approval granted to the building plan cannot be cancelled. In the result, this petition is accepted and the action taken by respondent No.4 canceling the approved building plan of the petitioners is held to be without lawful authority and of no legal affect: However, the respondent will be at liberty to take action against the petitioners in consonance with the provisions of section 7‑A of the said Ordinance or Rules 24 and 26 of the Building and Town Planning Regulations 1979, as the case may be, if the violations committed by the petitioners entail such an action. Mr. Shabir Ahmed, learned counsel appearing for respondent No.10 has pointed out that a suit (Suit No.1465/86) has been filed by the said respondent against the petitioners which is pending in the Civil Court and wherein an interim order has also been passed. A copy of such order has been filed with this petition which shows that ad interim injunction has been granted by the Court in favour of respondent No.10, restraining the petitioners from raising construction in any manner which may affect the respondent's rights of easement or light, air, privacy, etc. We would therefore, like to point out that the petitioners would be bound to abide by any such order that has been passed by the Civil Court in this regard. AA./A‑1184/K Order accordingly.