1994 PLP 1650 (CLC)

It may be pointed out that a petition had been filed by the petitioners to restrain the respondent No.l from raising further construction on plot No. D‑144 situated in Block 5, KDA Scheme No.5,. Clifton, Karachi, as the said respondent was raising construction in violation of approved plan and the relevant Building Control Regulations. During the pendency of the petition the property was sold by respondent No.l to respondent No.3 and, therefore, the said respondent was also impleaded as a party to the petition. This petition was finally disposed of by a consent order dated 3‑6‑1992, reference to which has earlier, been made in this order. As is evident from the said order the petition was allowed in terms of the prayers made therein as follows:‑‑ (a) Restrain Respondent No.l (Respondent No.3) her servant, employee, agents or any person acting through or under her from raising further construction on the said Plot D‑144 and or handing over possession of the construction or any part thereof to any person, body or organisation whether incorporated or not. (b) Direct that Respondent No.l (Respondent No.3) demolish all illegal constructions already raised on the said Plot D‑144 i.e. there being no basement which has been erected in accordance with the plan approved by Respondent No.2 and, therefore, all constructions have become illegally erected, at least the 2nd floor, since only ground plus one is allowed. (c) Order that Respondent No.2 should exercise its statutory powers, duties, under the Sindh Building Control Ordinance, 1979 and all bye laws and Rules there under and enforce them vis‑a‑vis the constructions already carried out, being carried out and which are to be carried out on the said Plot D‑144 by Respondent No.l (Respondent No.3) and to take steps demolish all the illegal constructions which have been made or which may be made hereafter by Respondent No.1 on the said Plot D‑144." The case of the petitioner is that after passing of the consent order the respondent No.3 got a revised plan approved by respondent No.2 whereby the violations earlier 'made by the respondent No.3 were regularised. Thereafter the respondent No.3 continued to raise construction of the building on the said plot when the present applications were filed by the petitioners. Although it has not been denied by Mr. I.H. Zaidi, learned counsel for the respondent No.3, that the latter after passing of the consent order dated 3‑6‑1992 has continued to raise construction which was not in consonance with the said order but the contention of the learned counsel is that, the respondent No.3, got a revised plan approved by the respondent No.2 which was in accordance with the relevant building rules and regulations and consequently the respondent has acted under the law and, therefore she has not committed any violation of the consent order. After hearing the learned counsel respectively appearing for the parties we have come to a conclusion that the respondents Nos.2 and 3 are prima facie guilty for violation of the consent order. Admittedly, according to the terms of the co-asent order, the respondent No.3 was obliged to demolish the entire illegal construction already raised on the said plot. The case of the respondent No.3 was that she had constructed a basement to provide for an air‑raid shelter and had raised ground and first floor on top of the. said basement but during the pendency of the petition it transpired that although on IC' portion of the plot such basement has been built by the respondent No. 3 which is three feet above the ground level but as the plot has a slope, the said respondent has raised construction of ground plus two floors on the portion adjoining the other portion. This has also been made clear by the photographs of the site taken by the petitioners and filed before this Court alongwith the petitioner's affidavit. Our attention has also been invited to the report submitted by the Architects, Shahab Ghani and Associates, which also shows a sketch of the site from which the above position become crystal clear. Mr. A.I. Chundrigar has also referred to a Counter‑Affidavit which was filed on behalf of the respondent No.2 dated 1‑4‑1990 which further confirms that the said respondent has committed violations of the approved plan by raising ground plus two floors. Although Mr. I.H. Zaidi has placed reliance upon another report submitted by Shahid Associates, Architects, but this report only shows that no deviation has been made from the regularised/revised building plan. Reference has also been made to the report by the Nazir of this Court dated 29‑3‑1990 which was submitted in pursuance of the order of this Court suit the report submitted by the Nazir shows that the said respondent had constructed a basement and ground and first floor of the building. Be that as it may, but the facts, enumerated above, clearly indicate that after the consent order passed by this Court the respondent No.3 got a revised building plan approved by respondent No.2 for which admittedly no notice was given either to the petitioners or any application was filed before this Court seeking modification of the consent order. It has already been pointed out that the respondent No.3 has constructed ground plus two floors on a portion of the plot which admittedly was a deviation from the law and the relevant building rules and for Which an undertaking was given by the said respondent which was to the effect that all such illegal construction which did not relate to the basement, would be demolished by the said respondent to bring the construction in conformity with the approved building plan. The said undertaking is clearly reflected in the consent order passed by the Court dated 3‑6‑1992, therefore, any further steps taken by the respondents No.3 or respondent No.2 in respect of fresh approval of the building plan were in violation of the said consent order. The explanation offered by the said respondent is not satisfactory on the face thereof for the reasons enumerated earlier in this order. Therefore, it is clear that a prima facie case for taking of action for contempt of Court or violation of the said order by the said respondents has been made out. In the result, let show‑cause notices be issued to the Controller and Dy. Controller (Building), Zone II, Karachi Building Control Authority (KDA) Civic Centre, Karachi and respondent No.3 to show cause as to why action was contemplated by Order 39, Rule 2 (3), 1C.P.C. and for Contempt of Court may not be taken against them. The said respondents are directed to be present in this Court on 22.11‑1993 alongwith their respective replies. Mr. I.H. Zaidi undertakes that he will supply the present address of the respondent No.3 to the office within five days. H.B.T./A‑1455/K Contempt notices issued.