2008 PLP 2031 (YLR)

MRS. YASMIN ABBASEY, J.

Facts of the case are that respondent No.5 owns Plots Nos.34/PR-2 and 33/PR-2 situated in between Garden Road and Abdullah Haroon Road. He applied for approval for raising 17 storeyed building. That was allowed with the amalgamation of both plots as one having main number as 34/PR-2 and respondent No.5 started construction thereon. Impugning the construction being raised by respondent No.5 as unauthorized, the petitioner had filed this petition objecting that: (i) due to store of building material a big portion of roads on both sides of plot have been encroached, causing problems for the passerby and vehicular traffic. (ii) construction had been raised without obtaining NOC for amalgamation of plots; and (iii) NOC, if any, issued be declared illegal as per Regulation 17-3 and Schedule 17A of Karachi Building .and Town Planning Regulations, 2002. Petitioner's contention is that before passing any order for amalgamation of two plots NOC from the Board of Revenue was required to be obtained and the NOC obtained from K.B.C.A. for raising such mutli-storeyed building is in violation of Regulation 17-3 and Schedule 17-A of Karachi Building and Town Planning Regulations, 2002.

2. To examine the spirit of Regula tion 17-e and Schedule 17-A of the Karachi Building and Town Planning Regulations, 2002, it would be appropriated to reproduce the same. "17-3. Declaration of Interim Control Areas-- 17.3.1. MP & FCD, after the approval of the Government may, by notification, declare a specified area to be an Interim Control Area for anyone or more of the following purposes:-- 17-3.1.1. to prevent haphazard and unplanned development in areas lacking adequate. (a) water supply, sewerage, or drainage facilities; (b) utilities, electricity, gas, telephone. (c) health, educational or other municipal services or facilities; and; (d) road net works and public transport."

3. Contention of learned counsel for the petitioner is that as Abdullah Haroon Road has been declared as "Interim Control Area", therefore, construction of 17 Multi-storeyed building in the area would be a continuous cause of inconvenience but except pleading so learned counsel failed to call our attention to the inadequate basic facilities in the area or the haphazard and un-planned development which respondent No.5 intends to raise on the plot to come in the way as defined in Regulation 17-3 of the Karachi Building and Town Planning Regulations, 2002.

4. Regulation of Karachi Building and Town Planning Regulations, 2002 says that MP & ECD after approval of the Government may by notification, declare a specified area to be an Interim Control Area for the purpose as mentioned in Article 17-3.1.1. Neither the notification as pointed out by the petitioner said to had been issued in this regard has been placed by him on record nor the purposes for which an area is declared as Interim Control Area has been specifically indicated to make the Regulation 17-3 applicable in the matter.

5. Ambiguous prayer with baseless allegation prima facie, appears to be mala fide act as both the petitioners admittedly are not resident of the area where disputed building is being constructed and none of the residents and inhabitants of area has come forward to object construction. Conversely covering the objection that construction has been raised without obtaining NOC for amalgamation of plots, NOC of City District Government, Karachi issued on 20-8-2004 along with proposed amalgamated plan duly numbered as 34 has been placed before us. Perusal of both these documents reveals that respondent No.5 is raising construction in accordance with law. On 30-8-2004 concept plan of Plot No.34, P.R. 2 was approved subject to certain condition, which was finalized on 26-10-2004.

6. It appears from the documents placed by respondent No.5 that besides present petitioners, some others too had put respondent No.5 under litigation in suit No.1077 of 2004. Suit No.1290 of 2004, H.C.A. No.146 of 2006 and Suit No.1306 of 2004 but in all the matters respondent No.5 succeeded and his title and construction was confirmed to be legal as per approved plan.

7. All the orders passed in above-referred litigation are sufficient proof of the fact that no illegality was committed by respondent No.5 at any stage for getting NOC for amalgamation of plots, approval of plan and so also in raising construction.

8. It is also not a disputed fact that in the array of all these approval, grant of NOC for advertisement and sale of shop and offices in project named as "Al-Najeebi Electronic Bazar" was also issued on 16-9-2004. Respondent No.5 has also pointed out that third party interest has already been created in the project with the booking of shops and offices and an amount of Rs.22,57,86,000 of the respective allottees has also involved therein who are not impleaded as respondents.

9. Upshot of the above discussion is that no material establishing illegality has been placed by the petitioners before us in getting the NOC for amalgamation of plots and in seeking approval of the building plan. Respondent No.5 did all in legal manner. The K.B.C.A. has also not supported the allegations of the petitioner contained in the petition and has taken stand that construction was in accordance with the completion plan. Summing up all these facts, petition has no merits and was dismissed in limine along with listed application.

10. These are the reasons of our short order dated 27-3-2007. H.B.T./I-9/K Petition dismissed.