1998CLC958 (PLP)

WAJIHUDDIN AHMED, J.‑‑‑These are two connected petitions. The first of these is apparently by a tenant of one of the four disputed shops and an upper floor' office; constructed in the Hotel Imperial Premises, Queens Road, Karachi, where the disputed shops are claimed to be used as Display Centre for foreign buyers. In turn, the second petition is the petition by the owners of such shops. The common causes for grievance are notices issued by the K.B.C.A., respondent No.2 here, claiming that such structure of shops and office thereon is unauthorised, coming within the cut‑line portion (i.e. space reserved for future road widening scheme) and requires to be demolished. These are 24 hours' notices. Upon approach to this Court, ad interim orders were issued and the respondents have put in appearances. The petitioner's case is that the allegedly illegally constructed structure in front of the plot has been duly regularized and does not merit to be removed. Reliance is placed on a plan approved under the Sindh People's Local Government Ordinance, 1972. Such plan has been produced but that is conditioned as under:‑‑

"Subject to the condition contained in the Accompanying Letter No.KMC/AC/BP 1056/75/1159, dated 7‑4‑1975 and the condition mentioned below. This approval would be liable to cancellation in case it is found at any later stage that it was obtained by misrepresentation of facts. With the condition that structures coming within the cut‑line shall be removed without‑compensation. " Regarding the reproduced condition, the petitioners maintain that there is no immediate prospect of road widening, if and when such a proposal is taken in hand, necessary acquisition proceedings shall have to be instituted and then alone the petitioners can be called upon to remove the allegedly offending structure. On 9‑12‑1996 it was stated before this Court from the side of the petitioners that prior to the approved/regularised plan there was an approved plan for the main building. The petitioners were required to produce such plan, which was not produced. On the same date and in the same order, it was observed that if the approved plan was issued on 7‑4‑1975, there had to be a completion plan, which too after lapse of 21 years should have materialized. If there was a completion plan, such as well was required to be produced. The same too was not brought on record, What is more, following upon the promulgation of the Sindh Buildings Control Ordinance, 1979. Section 6(1) thereof relevantly postulated as under:‑‑

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6. Approval of plan.‑‑‑(1) No building shall be constructed before the Authority has, in the prescribed manner, approved the plan of such building and granted no‑objection certificate for the construction thereof on payment of such fee as may be prescribed: Provided that in the case of a building the construction whereof has commenced before coming into force of this Ordinance, the Authority's approval of the plan and no‑objection certificate shall be obtained not later than six months after the enforcement of the Ordinance. (Explanation. ‑‑‑The word "construct" will all its variations used in this section and hereafter shall include 'reconstruct' with all its variations and, additions or alterations). 2.

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In line with the foregoing, it was for the petitioners to state as‑to when the building in question was taken in hand for putting up the requisite construction, when was the initial plan submitted for approval, what did the approval letter stipulate and finally when was the construction taken on the level of completion and when the final seal of completion was affixed on the exercise. All these essentials have not been provided, as would have been expected in such a serious case. The only document brought on record, as seen, is the approved plan but that itself was accompanied by a letter and even that letter has not been produced. Coming to the controversy itself, it is not disputed that the structure in question falls within the cut‑line portion. All that is urged is that the necessary process for acquisition has not been taken in hand but that is not material. It is common knowledge that in the various localities of the city, such as I.I. Chundrigar Road, Frere Road, etc., multi‑storeyed buildings are constructed leaving substantial frontage for cut‑line purposes. The cut‑line portions, we understand, have never been acquired. If the petitioner's logic were to be accepted then the owners of such cut‑line portions could raise make‑shift constructions thereon the simplest of pleas that awaiting acquisition they could use their property in a manner suited to themselves. In an expanding modern city such as Karachi the cut‑line provisions are of vital importance. Such have to be given effect to in all individual cases and one individual cannot steal a march over another by simply saying that the scheme is itself in a state of fruition and that he would only act when others do likewise or that till such time as the land is his he is free to do with it what he pleases. In the circumstances, we asked the learned counsel for the petitioners whether he would be prepared to accept a reasonable period of time, within which we could grant to the petitioners to do the needful. He skirted that question. Constitutional jurisdiction is essentially equitable in nature. No equities call to be protected in this case. The land can remain with the owner petitioners to be used as an open ground or for any other purpose except use as a building constructed thereupon. That alone could be the result of giving effect to the impugned notices and that constitutes no illegality. For such reasons through a short order passed on 17‑12‑1996 we had dismissed these petitions. A.A./I‑32/K Petitions dismissed