P L D 2005 Supreme Court 361 (PLP)

ABDUL HAMEED DOGAR J.‑‑‑ Petitioners seek leave to appeal against the order dated 13‑12‑2004 passed by a learned Division Bench of High Court of Sindh, Karachi, whereby Constitution Petition No.1095 of 2004 filed by respondent No.1 Syed Mahmood Akhtar Naqvi, President of M/s Jaffar‑e‑Tayyar Co‑operative Housing Society Ltd., was allowed and disposed of along with listed miscellaneous applications.

2. The facts in brief leading to the filing of the instant petition are that respondent No.1 M/s Jaffer‑e‑Tayyar is a Co‑operative Housing Society (hereinafter referred to as `the Society') duly registered in the year 1970 under the Co‑operative Societies Act, 1925. Petitioner No.l Haider Ali Rasheed Molji, is the founder of the Society and Managing Trustee of Sughra Bai Trust. He made multiple allotments in the names of his sisters, sons, brothers, relatives, friends and fictitious persons. He started violating the bye‑laws of the society, on which a complaint was made to the Deputy Registrar of the Co‑operative Societies and his membership was cancelled. It was also alleged that after the registration of Society, Petitioner No.1 collected huge amount from the public and purchased certain Survey numbers including Survey Nos. 331 and 332 for the Society and earmarked the plots for Rehabilitation of its members and a plot S.T‑2 was earmarked and reserved from Survey No.331, measuring 2000 sq. yards for Community Hall and Madressa. After the approval from KDA, a Community Hall was constructed over a portion of 2000 Sq. yards whereas some portion was left for the construction of "Madressa". Petitioner No.1 converted the said amenity plot into residential plots and allotted the same to 14/15 strangers on back dates and collected huge amounts from them who raised construction over the said plots illegally.

3. Feeling aggrieved, Respondent No. l moved for demolition of said illegal constructions to the Karachi Building Control Authority (hereinafter referred to as `the Authority') but could not succeed. Whereafter, he invoked the Constitutional jurisdiction of the High Court of Sindh and filed aforesaid petition which was allowed vide impugned order wherein it was directed that all unauthorized construction raised over reserved area of 2000 sq. yards from Survey No.331 meant for amenity purpose be demolished within two months.

4. We have heard M/s Akhtar Ali Mehmood, learned Advocate Supreme Court for the petitioners' and Samiuddin Sami, learned Advocate Supreme Court for respondent No.1 at length and have gone through the record and proceedings of the case in minute particulars.

5. Mr. Akhtar Ali Mehmood, learned counsel for the petitioner vehemently contended that the impugned order suffers from legal defect and is not sustainable in law. According to him; respondent No. l has no locus standi to invoke the Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 as he neither is an aggrieved person nor has any right or interest in the property .in question. On the contrary, petitioner No.1 is the founder of the Society and has been managing the affairs of Sughra Bai Trust. Learned counsel contended that the disputed plot was reserved for construction of Memorial Hall, Madressa and Imam Bargah and was under exclusive administration of Trust, therefore, certain employees of the Society were allowed by petitioner No. l to raise construction and live therein, thus he has not committed any illegality.

6. On the other hand, learned counsel for respondent No. l controverted the above contentions of the learned counsel for the petitioners and contended that the disputed plot is admittedly an amenity plot. Petitioners have admitted before the High Court as well as before this Court that they had raised illegal construction over the said plot without getting the layout plan approved from the Authority.

7. Admittedly, the disputed plot is an amenity plot reserved for Memorial Hall, Madressa and Imam Bargah, It was frankly conceded by the petitioners in the reply submitted before the High Court that they had raised illegal construction over the amenity plot and constructed residential 'houses wherein they are residing. Even petitioner No.] specifically conceded in the affidavit filed by him before the High Court that an area of 2000 sq. yard Survey No.331 was meant for construction of Memorial Hall, Madressa and Imam Bargah where he had allowed seven persons working as employees of Truest to build their houses and, reside without any charges. During the arguments before this Court also, learned counsel for the petitioners admitted about the illegal construction over the said plot without having any layout plan approved from the Authority. In such circumstances, learned High Court was right in. holding that the said construction being unauthorized over the reserved area be demolished within two months.

8. Resultantly, petition being devoid of force is dismissed and leave to appeal refused. M.H./H‑29/S Petition dismissed.