2017 PLP 903 (YLR)

NADEEM AKHTAR, J.

Through this Constitutional Petition, the petitioner has challenged the additional stairs constructed by respondent No.1/builder in front of his shop leading to the basement of the building in question. He has prayed that respondents be directed to demolish the impugned stairs, and be also restrained from constructing the same. It is contended that a building known as 'Haroon Shopping Mall' was constructed by respondent No.1 about thirty years ago on Plot No.FL-5, Sector No.15-A/1, North Karachi Township, Karachi. The petitioner is the sole and absolute owner of Shop No.210 situated in the said building by virtue of a sub-lease executed and registered in his favour on 22.08.2009. About six months back, respondent No.1 constructed additional stairs in the main lobby of the building right in front of the petitioner's shop. It is alleged that the impugned stairs leading to the basement have been constructed without any approved plan although stairs for access to the basement already exist and are still being used ; and, due to such illegal and unauthorized construction the width of the main lobby has been reduced substantially resulting in not only congestion and inconvenience, but also a decrease in the market value of the petitioner's shop.

2. It was stated by respondent No.1 in its comments as well as before us at the time of hearing that originally a four feet wide passage was provided for access to the basement which is used by the shopkeepers as a prayer area for offering prayers ; electricity meters of the entire building are installed on both sides of the said passage ; and, due to congestion in the passage at the time of prayers as well as in order to avoid any accident on account of short circuit, the impugned additional stairs were provided at the request of the shopkeepers/occupants of the building.

3. On 23.09.2016, a statement was made on behalf of respondent No.1 that the said respondent will file a proper application in the prescribed form to SBCA on or before 30.09.2016 for permission/ regularization of the impugned stairs. In view of this statement, an undertaking was given before us on the same day on behalf of SBCA that in case any such application is received by SBCA, the same shall be decided latest by 07.10.2016 on merits, strictly in accordance with law and after providing full and proper opportunity of hearing to all concerned. On 19.10.2016, further time was sought on behalf of SBCA to decide the application filed by respondent No.1. A compliance report dated 31.10.2016 has been filed by SBCA stating that respondent No.1 had submitted a plan for approval of the impugned stairs made of steel for access to the prayer area in the basement and for emergency purposes. As per the said compliance report, conditional permission has been granted by SBCA vide letter dated 28.10.2016 after taking an undertaking from respondent No.1 that he would abide by the rules, regulations and instructions of SBCA.

4. We have heard the learned counsel for the parties and have also examined the material available on record with their assistance. The photographs available on record, which have not been disputed by respondent No.1 and/or SBCA, show that a big opening for the impugned additional stairs was created in the roof of the basement which is the floor of the lobby on the ground floor. It is an admitted position that the said roof/floor is an RCC construction which was cut from the middle. Thus, the strength of the said roof/ floor must have been affected substantially. We have noticed that the comments/reports filed by SBCA as well as their letter dated 28.10.2016 granting purported conditional permission for the impugned additional stairs, are completely silent with regard to the cutting of RCC construction of the roof/ floor and the impact thereof on the strength of the said roof/floor. It is, therefore, clear that the most important and elementary aspect regarding safety of the building as well as the occupants and visitors thereof has not been considered at all by SBCA while deciding the respondent No.1's application for permission/regularization. In such circumstances, the conditional permission purportedly granted by SBCA is hereby rejected.

5. As noted above, it is an admitted position that stairs leading to the basement have already been provided in the building, which are still being used to access the basement. According to respondent No.1, the impugned additional stairs were provided at the request of the occupants as the said original stairs are not sufficient to cater to their needs. In our opinion, proper course was not adopted by respondent No.1 to resolve the problem as a proper application in the prescribed form along with a proposed revised plan ought to have been submitted to SBCA seeking their prior approval instead of making illegal and unauthorized major structural changes by cutting and damaging the RCC roof/floor, and also by affecting the rights of the owners/occupants whose shops are located in the lobby. Admittedly, respondent No.1 never applied to SBCA for such major structural changes nor have the same been approved by SBCA. It is unfortunate that despite this position, instead of taking action in accordance with law, conditional permission was granted by SBCA in haste and in an extremely irresponsible manner. In view of the above, the impugned stairs are liable to be removed and the altered roof/floor is liable to be restored to its original condition.

6. Foregoing are the reasons of the short order announced by us on 01.11.2016, whereby this petition was allowed as prayed, and respondent No.1/ builder was directed to remove the impugned stairs and restore the roof of the basement and floor of the ground floor in its original condition latest by 30.11.2016 strictly in accordance with the approved plan; and, in case of failure of respondent No.1, respondent No.2/SBCA was directed to comply with the said order without fail latest by 10.12.2016 and to file compliance report with MIT-II of this Court. ZC/M-183/Sindh Petition allowed.