1997 PLP 2792 (MLD)

MAMOON KAZI, J.‑‑‑The petitioner is aggrieved by a letter dated 1‑2- 1984, directing the petitioner to stop construction of a building and further threatening the petitioner with prosecution under the provisions of the Sindh Building Control Ordinance. 1979. As is evident from the notice dated 1‑2‑1984, the objection raised by the respondent is based on the fact that the 'petitioner has failed to execute an agreement with the tenants and, therefore, the approval earlier granted by the respondent in respect of the construction of the building was cancelled. It further shows that the notice was withdrawn in pursuance of resolution No.663 passed by the governing body of the K.D.A. No controversy exists on the point that the petitioner had already started with the construction of the building and has completed structure of the first floor. Mr. Munawar Malik, learned counsel for the petitioner has firstly tended that regulation of the Building Control Authority, which envisaged an agreement with the tenants, has been declared as ultra vires the powers of the said authority by a judgment of this Court in the case of Hashwani Sales and Services Ltd. v. Karachi Building Control Authority and 15 others (PLD 1986 Karachi 393). In this case it was held as under‑‑ "However, as we have already said that the impugned regulations are in excess of powers vesting in respondent No.12 and are unreasonable, this petition is, therefore, allowed and the regulations dated 12‑4‑1984 are declared as ultra vires the powers of the respondent No. l and of no legal effect and any further action taken thereunder by the respondent No. l is also declared to be equally illegal and void." In our opinion the learned counsel is right because after the judgment of this Court the said regulation is no more valid and approval granted by the respondent, therefore; could not be withdrawn in pursuance of the said regulation. Mr. Munawar Malik has also invited our attention to another circular issued by the K.D.A. dated 3‑12‑1983 which shows that permission for construction had already been given by the Karachi Building Control Authority and the same can be suspended only in case where no physical construction has been started and the premises are still occupied by the tenants. In the present case admittedly the construction has been started by the petitioner and the structure of the ground floor has already been completed. We are therefore, of the opinion that the respondent had no lawful authority to either cancel the approved building plan of the petitioner or stop the construction on the grounds stated in the letter, dated 1‑2‑1984. In the result, this petition is allowed and the said‑letter dated 1‑2‑1984 is declared to be without lawful authority and of no legal effect. We may clarify that if the validity of the building plan has already expired the petitioner will be at liberty to apply for a fresh sanction from the respondents. The parties are left to bear their own costs. H.B.T./S‑53/K Petition allowed.