1999 PLP 3209 (MLD)

Preamble

Constitution of Pakistan (1973), Art. 199

Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2

Status quo

Maintainability of Un-authorised and illegal construction against approved plan and in violation of Sindh Building Control Ordinance, 1979

Status quo ordered to be maintained till decision of Constitutional petition M. Saleem Khan for Petitioners. Mrs. Zahida Naqvi for Respondent No. 1 . M.A. Lateef for Respondents Nos. 2 to 4.

1. The official assignee was appointed on 24-7.1997 as Commissioner to inspect the site with notice to the parties and report that whether the construction, so far going on, was according to the approved plan or not. He asked to take photographs and also to take assistance of an Architect/Engineer. The official assignee visited the site on 29-7-1997 in presence of the officers of the K. B. C. A. respondent No. 1 and the representatives of the petitioners. He has recorded his observations mentioning that the officers of the K. B. C. A. informed him that no Plan has been approved by them for the construction of 5th Floor over old building on Plot No. 31/5. He has noted number of violations which. were pointed out to him regarding projection of the roof, the height of the roof of the ground floor, violation in respect of roof of the Mazzanine floor which has been raised and that no stair case was provided and instead the stair case of the adjoining Plot No. 25 is being used for this new building. As regarding the construction on Plot No. 25, the 4th and 5th Floors are not yet complete and car park on the ground floor has been converted into godowns. Let it be kept on the record.

2. Heard the learned counsel for the parties, it is contended that the petitioners, who are tenants of the respondents Nos. 2 to 4 are residing with their families, in the existing Block Noor House on Plot No. 31/5 (Old No. F-3/2 13) on Abdullah Haroon Road, Karachi. The respondents Nos. 2 to 4, it is said, have started illegal construction on the rear open portion of this plot without any approved plan from the respondent No. 1, shifting the water supply tank of the existing block to another place and also other amenities to pressurise the petitioners to vacate the premises. It is further asserted that the respondents have constructed Kohinoor Electronic Market on the adjacent Plot bearing No. 25/26 admeasuring 1500 sq. yds without leaving compulsory open space. The respondents are making illegal constructions day and night without any approved plan through their builders respondent No. 5, and this illegal and un-authorise construction is being allowed by K. B. C. A. in violation of S. B. C. Ordinance, 1979 and also Town Planning Regulations. Petition has been filed to stop the respondents from making illegal and unauthorised construction and direct them to demolish the illegal and un-authorised constructions of shops and offices on Plot No. 31/5, PR-11. Mrs. Zahida Zaqvi, contends that the K. B. C. A. had given three notices, dated 16-5-1997, 23-5-1997 and 3-6-1997, respectively, to the builders namely respondents Nos. 2 to 4 to stop illegal construction but to no response by them, hence, demolition was made on 8-7-1997 after final notice on 16-6-1997. It is contended by her that the respondents started construction after filing Suit No. 911 of 1997 and obtained status quo from the High Court which still holds good and because of this order the K. B. C. A. is handicapped, an affidavit of this regard has been filed by Mr. Khawaja Moinuddin, the Deputy Controller of the K. B. C. A. Mr. M.A. Lateef, on the other hand, contended that the petition has been filed with mala fide intention only to knockout money from the respondents Nos. 2 to 4 which is apparent from prayer 'D' of the petition. According to them petition is not maintainable and misconceived as the petitioner are not aggrieved party. Prayer 'D' of the petition does not require any consideration nor can be granted the petitioners in this Constitutional petition. The petitioners are living in the existing block on the same plot where the intended un-authorised A constructions are being made, hence they have cause of grievance nothing has been shown how this petition appears to be misconceived or not maintainable. From the material available on the record including the photographs and also the report of the Commissioner/Official assignee, it is clear that the violation of S. B. C. Ordinance 1979 has been made an existing structure as well as there new structure being raised seems to be un-authorise, illegal and against the approved plan, hence, we admit this petition.

3. In view of the above facts this application is allowed, the respondents Nos. 2 to 4 are directed to maintain status quo till the final disposal of the petition. However, the Respondent No. 1 i.e., K. B. C. A. is free to take any action according, to the law. Q.M.H./M.A.K./A-198/K Status quo maintained.