2007 PLP 1345 (MLD)

KHILJI ARIF HUSSAIN, J.

Plaintiff has filed the suit for declaration damages and permanent injunction seeking declaration that the notice issued by KBCA/defendant No.3, dated 16-3-2004 is illegal unlawful and without jurisdiction. By the impugned notice KBCA directed the plaintiff for the removal of unauthorized construction in the basement reserved for car parking. Heard, Mrs. Zubaida K. Jamali, learned Advocate for the plaintiff and Mr. Shahid Jamiluddin Ahmed Khan, learned Advocate, for KBCA/defendant No.3. Learned Advocate for the plaintiff mainly argued that the plaintiff is a bona fide allottee of the 2864 square feet approximately in the basement of Commercial Plot bearing. No. 172-N Block No.2. PECHS, Karachi, and is running business therein. The learned Advocate has drawn my attention to the possession order, dated 1-9-1993 and receipt amounting to Rs.2,76,200, dated 24-4-1993. Plaintiff also produced photocopy of telephone bill for the month of April, 2002. The learned Advocate mainly contended that since the area of the plot on which project has been 'constructed was less than 700 square feet therefore it was not mandatory-for the builders to provide car parking. In support of her contention, learned counsel relied upon Rule 24.7.1 of Karachi Building and Town. Planning 2002. On the other hand, Mr. Shahid Jamiluddin Ahmed Khan, learned Advocate for the defendant No.3 argued that the plaintiff has illegally raised construction in the basement which was reserved for car parking and accordingly after due service of notice, illegal construction was demolished by the defendant No.3 in discharge of their duties. In support of his contention learned Advocate has relied upon the case of 2000 SCMR 1747 and unreported judgment in H.C.A. No. 163 of 2004. I have taken into consideration respective-arguments advanced by the learned Advocates for the parties. It is an admitted position that the sub-lease has not been executed in favour of the plaintiff nor completion certificate was issued by the concerned authority in respect of the Project in question. In order to ascertain whether the basement was reserved for car parking or not. I have directed the defendant No.3/KBCA on 5-10-2004 to place on record Approved Building Plan. The defendant No.3 produced the Approved Building Plan of the Project and it appears from that the entire basement was reserved for car parking and it was not disputed by the plaintiff that the plaintiff was in occupation of the area raised construction on the area which was marked for car parking in the Approved Building Plan. As regards the contention of the learned Advocate in support of regularization that the request of the plaintiff is under consideration. Learned Advocate for the defendant had produced a letter, dated 30-10-2000 whereby such request was declined. In the case of Muhammad Hanif v. KBCA and others, H.C.A. No.163 of 2004 .(unreported), this Court has declined injunction under similar circumstances while relying upon the case of Muhammad Saleem and others v. Administrator Karachi Metropolitan Corporation (2000 SCMR 1748). The Hon'ble Supreme Court in the case of Muhammad Saleem and others (supra) held that the appellants cannot acquire better rights than their predecessors and in any event when they choose to purchase the property without verifying the compliance of the requirements of law enacted more than 20 years ago, they can only blame themselves. In Asma Builders v. Government of Sindh (1999 CLC 326), a Division Bench of this Court held that when a building is constructed in violation and deviation of approved plan the Authority would be within its right to take action for violation and if necessary to demolish unauthorized structure. For the foregoing reasons plaintiff has failed to make out any prima facie case for grant of injunction and accordingly listed application is dismissed. 2 &

3. Nazir's Report is taken on record.

4. Dismissed for non-prosecution. H.B.T./M-81/K Application dismisse