2002 PLP 536 (CLC)

S.A. RABBANI, J.‑‑‑ Property bearing No.29‑SB‑6, Sadar Bazar Quarters, Karachi, was an old building and it was purchased by the petitioners in 1996. The building was in a dilapidated condition and the petitioners proposed to re‑construct a new building on the plot, for which they submitted a building plan to respondent No. 1, Karachi Building Control Authority, in June, 1997, for approval. The plan was kept without a decision regarding approval and after a notice to K.B.C.A., the petitioners started construction, assuming approval of the plan under Karachi Building and Town Planning Regulations. The officials of K.B.C.A. interfered to stop the construction and therefore, this petition was filed for a declaration that the petitioners are entitled to carry out construction according to law and interference by respondent No. 1 is illegal and unauthorized; with a prayer for, direction to the respondents not to interfere with the construction work. In the comments filed on behalf of the respondent No. 1, K.B.C.A., it was stated that, in 1987, first, second and third floor of the building were declared dangerous and thereafter the building was declared protected heritage of Culture and Tourism Department. K.B.C.A. stated that the plot was lying vacant with construction at plinth level in progress and the matter has been referred to Advisory Committee of Culture and Tourism' Department for de‑notification and de‑notification is, mandatory requirement for approval of the plan. Culture and Tourism Department of Government of Sindh also filed comments mentioning that on 22‑4‑1997, it was decided to maintain the facade at 60 degree angle from the center of the building and the rest could be demolished and reconstructed. It was mentioned that the old building was, however, demolished and a case was registered against the petitioners for illegal demolition of this building. It is further mentioned that the, proceedings against the petitioners have been quashed by the High Court: Mr. K.B. Bhutto, learned counsel for the petitioners, submitted that respondent No.1; K.B.C.A., themselves published a notice in the daily "Dawn" and "Jang", Karachi on June, 5, 1997, declaring this building, alongwith others, dangerous and directed the owners/occupants, to demolish the buildings. Copies of such notice have been produced, which support the contention of Mr. Bhutto and there is no mention in the notice of any specific floors which were dangerous. Mr. Ali Bin Adam Jafri, learned counsel for the respondent No.1, K.B.C.A., referred to a letter, addressed to S.D.M. Preedy, Karachi, by the Deputy Controller Buildings, which mentions that first, second and third floor only were declared dangerous. This letter was issued on 22‑6‑1995 i.e. two years before the notice published in the newspapers. It cannot, therefore, be assumed that at the time when the notice was published in the newspapers in June, 1997, the ground floor was not in dangerous condition. If it was not to be demolished, it should have been mentioned in the notice published in the newspapers by K.B.C.A. The lapse is on the part of respondent No.1. The building was demolished in accordance with the notice published by respondent No.1. As regards the building being protected, the lapse, again, is on the part of the Culture and Tourism Department. They neither entered into an agreement with the owner, as required under section 8 of the Sindh Cultural Heritage (Preservation) Act, 1994 nor acquired it under sections 11 and 12. of this Act. It is contended on their behalf that facade up to the ground floor was to be protected, but it is undisputed position that it is no more in existence. There is, therefore, no question of its protection now. For its demolition, they filed criminal proceedings against the petitioners, but these have also been quashed by the High Court. In the abovementioned circumstances, there is no legal justification for withholding decision regarding approval, of the plan submitted by the petitioners to respondent No. 1. Mr. Bhutto, learned counsel for the petitioners, submitted that under Regulation 13 of Karachi Building anti Town Planning Regulations, the petitioners are entitled to start construction after sixty days of, submission of the plan for approval. Under this regulation, the concerned authority is bound to pass orders within sixty days, granting or refusing permission to carry out building work and if no order is passed within thirty days of receipt of such application, it shall be deemed to have been sanctioned to the extent to which it does not contravene the provisions of these regulations, the master plan or site development scheme, if any. The requirement is a notice to the concerned authority after which the applicant may proceed to carry out the building work within one year from the date of delivery of such notice. Mr. Bhutto has produced copy of notice given by him in this regard. The facts mentioned above show that the petitioners are being' punished for lapses on the part of officials of K.B.C.A. and Culture and Tourism Department. Under the law, in the circumstances, the petitioners are entitled to carry, out building work to the extent which does not contravene Town Planning Regulations, master plan or site development scheme, if any. Till there is no such contravention, the respondents shall not interfere with the building work and in case of any contravention its details should be specified in a notice to be given to the petitioners. The petition is allowed, accordingly. Q.M.H./M.A.K./A‑277/K Petition allowed.