P L D 2002 Peshawar 99 (PLP)

QAZI EHSANULLAH QURESHI, J.‑‑‑The petitioner has moved the instant writ petition praying therein that notice dated 7‑2‑2001 and letter dated 22‑2‑2001 issued by respondent No. l be declared as without jurisdiction, lawful authority and that respondents Nos.2 and 3 shall accord formal approval to the petitioner for construction of building plan in respect of four shops of V.I.P. Market.

2. Brief facts of the matter are that t e petitioner has submitted a layout plan for VIP Market before respondents Nos.1 and 2 which was duly approved by the Dera Development Authority vide order dated 13‑10‑2000. Later on the petitioner in order to constrpct four shops on the front of the main Dera ‑Daraban Road sought the permission to raise construction thereon and all procedural formalities in this behalf were met with‑‑‑requisite fee as required under the rules also deposited, but surprisingly on 7‑2‑2001, respondent No. 1 issued a notice to the petitioner that he has violated Regulation No.53 of the N.‑W.FP Building Regulations, 1985 and was directed to appear in person or through his representative alongwith documentary evidence. The reply to this effect was despatched through registered A.D. but without considering the satisfactory reply on the part of the petitioner, the respondents conveyed him through Letter No.141‑43/DDA/BCA dated 22‑2‑2001 that the lay‑out plan earlier approved by the Building Control Agency of D.D.A. has been cancelled Hence this petition.

3. Learned counsel for the petitioner argued that the lay‑out plan had been approved by the competent Authority. All necessary formalities etc. have been completed in this regard. Respondents Nos.1 and 2 in the circumstances of the case were not competent to cancel the same. That the provisions of Regulation No.ll of the N.‑W.F.P. Building Regulations, 1985 is not attracted in the matter and thus illegally applied, and that the petitioner had not been served with prior notice before the cancellation of lay‑out plan.

4. The learned counsel for respondents vehemently opposed the contentions put forward by the learned counsel for the petitioner and objected to the very maintainability of the writ petition, as the remedy of appeal was available to the petitioner under section 64 of the N.‑W.F.P. Building Regulations, 1985. It was advanced that petitioner submitted a lay‑out plan for approval which was approved. Later on, the petitioner in order to start construction submitted site plan for construction of four shops of V.1.P. Market under rule 53(ii) of the aforesaid Regulation. During its process getting the final approval and without waiting for result of the said request, the petitioner started the construction and completed the same, which he admits in his writ petition. Meanwhile, the National Highway Authorities also objected that why the .lay‑out plan of the petitioner was approved and why he is allowed to construct V.I.P, Market without obtaining N.O.C. from them as required and that the illegal construction may create hindrance while carrying out the extension of the road. It is thus that the petitioner was served with a notice under section 11 of the aforementioned Regulation alarminghim to stop the illegal construction, but he had not cared for the notice and kept on continuing the disputed construction. As such, the, approved lay‑out plan was cancelled. That the lay‑out plan does not mean approval of construction, it is just a proposal/lay‑out and sketch showing the proposed construction for the purpose of construction of building/shops or any other structure. A building plan is to be approved under section 53(ii) of Chapter 9 of N.‑W.F.P. Building Regulations, 1985. The record also reveals that the petitioner had submitted a separate plan for construction of shops as is evident from para.5 of the writ petition. The petitioner after receipt of notice has the remedy by way of appeal before the appellate Board under section 43 of the Planning Act, 1978, which he did not avail and moved this Court through the instant petition which exercise would be illegal and' does not entitle him to any sort of relief. Above all, the legal position of the case is quite clear that construction could not be carried out alongwith the road‑side within forty metres from the centre of road.

5. We have given anxious consideration to the submissions of the learned counsel for the parties and perused the relevant laws/rules concerning the matter. Under section 53(ii) of Regulation 1985 mentioned above, it is provided that no person/society shall launch any scheme/society within the urban area without approval of the Building Agency. Sub‑clause (2) thereof further speaks that no building shall be constructed, before the agency in the prescribed manner approved the plan of such building on payment of such fee as may be prescribed in Schedule A The petitioner himself admits vide para.5 of the writ petition that he accordingly submitted a construction plan for approval and that he was orally directed by the competent Authority to carry out the construction without waiting for final approval which is routine formality, so he completed the said construction. Section 11 of the said Regulation empowers the authority to cancel the plan if the same is not in accordance with the specification/ instructions etc. Similariy, section 12 empowers the concerned agency to issue notice in respect of illegal construction which notice was issued on 7-2‑2001 and duly replied by the petisioner through postal service.

6. The crucial point in the case is whether any person/agency or body can be allow or carry out construction on the road‑side (even if it is owned) in violafcr to the National Highways and Strategic Roads (Control) Rules, 1998. The answer is in negative, as under sub‑clause (iv) of rule 3 of the Rules (ibid), it is provided that the construction can only be carried out on the road‑said within forty metres from centre line of the nearest carriage way, in the case of sanction p' of National Highway or Strategic Road which is situated in Municipal limits.

6. The crux of the above discussion is that if any construction falling within the forty metres from centre line of the road is clear violation. At the same time, the cancellation of lay‑out plan as a whole is also not justified. The lay‑out plan and construction plan shall be allowed to .the extent in case not falling under the National Highway Rules mentioned above. The petitioner may submit amended lay‑out plan etc. accordingly in line. with the above directions, We also observe at this juncture that the agency while approving the site plan was not vigilant enough. It was, included in their duty to inspect and examine the lay‑out plan and proposed construction on the site before its approval and were under obligation to point out. illegality or irregularity on the spot, if any, and would have directed the petitioner to amend plan in such manner. Awakening and issuing notice after the construction is over and a huge amount already spent, that too on the objection of the National Highway Authorities, is highly, regrettable which expose the conduct and efficiency of the Agency. Similarly, the petitioner was supposed to be aware and alert of the fact, law and rules, as ignorance of law is no excuse.

7. Therefore, the writ petition is partly allowed in the terms that such .construction (if any) prohibited under sub‑clause (iv) of section 3 of the National Highway and Strategic Roads (Control) Rules, 1998, is directed to be removed, being illegal and violative of the prevailing rules, within a month. However, after expiry of such given period of one month, if position remains the same, the respondents/department will be at liberty to demolish it accordingly restricted to ' encroached area. Q.M.H./M.A.K./472/P Order accordingly: