' S. ALI ASLAM JAFRI, J.--- The facts as disclosed in the petition are that petitioner Textile Plaza Owners Association (Ltd.) in September, 2002 moved an application before the respondents for authorization/grant of permission for raising artificial ACC sheds over RCC columns in open car parking space at car parking floor of the building known as "Textile Plaza" M.A. Jinnah Road, Karachi.
According to the petitioner necessary documents and site plans as per requirements for the purpose including suitability report by the authorized engineer, etc., were also appended with the application, but the respondents refused to receive the said application on the ground that no record pertaining Textile Plaza was traceable. The petitioner wrote a letter to K.D.A. For supply of copies of necessary documents in respect whereof the respondents had regretted that there was no spare copy of the approved plan. Available in their file. On 25-10-1997 petitioner in response to a direction from respondents deposited requisite amount of Rs,500 for supply of said copies, but despite several reminders the respondents failed to deliver the same. The petitioner made such complaints to the authority concerned from time to time but no attention was paid. Ultimately, the petitioner approached the Army Monitoring Cell, K.D.A. Building, Karachi, which borne fruit and the petitioner was informed that the file in question was not traceable in the K.B.C.A. Record Cell. Thus, it will be seen that the respondents took two contradictory stands so far availability of the said file is concerned. At one stage they said that file in question was "not traceable" whereas in their letter (Annexure 'C') they admitted the availability of the file in their office. Obviously it was being done with mala fide intentions.
2. It is the case of the petitioner that construction of the shed for parking of the vehicles is necessary for various reasons. At one hand it would provide protection to the owners of the vehicles which are parked in open whereas on the other hand it shall facilitate the smooth and unobstructed flow of the traffic on the road in front of Textile Plaza where there remains very short and narrow space available after parking of the cars. Instead of granting permission to raise such construction/shed over the RCC pillars which shall not be offensive to anybody, the respondents issued a notice to the petitioner on 26-4-2001 for removal of the pillars raised for the purpose of parking shed on the plea that construction in open space is in violation of approved plan. The said notice was replied by the petitioner whereafter another notice dated 12-10-2002 was issued directing the petitioner to remove unauthorized construction of RCC columns at parking floor (2nd) in open space and thereafter the actual work of demolition was partially carried out. It was under these circumstances the petitioner filed this petition with a prayer for issuance of a writ directing the respondents to receive the application of the petitioner along with its enclosure for grant of permission in order to provide appropriate indoor parking area at the available open vacant space of the Textile Plaza, and to decide the same on merits without any delay. A further prayer for a restraint order against the respondents from demolishing the already raised RCC columns has also been made. The petitioner has also prayed that notice dated 12-10-2002 be set aside and any other relief deemed fit and proper by the Court be granted. An application for interim relief pending the decision of the petition restraining the respondents from demolishing the constructed RCC columns was also filed.
3. In response to the notice, comments and counter-affidavit have been filed on behalf of the respondents stating therein that the building in question has been constructed before promulgation of Sindh Buildings Control Ordinance 1979 and the record of approved building plan is not available/traceable in the office of the respondents. Photostat copy of NOC dated 2-6-1967 and approval letter dated 22-6-1977 have been placed on record in support of this contention. It has been further stated that construction of RCC columns in parking area at 2nd floor is without approval/permission and some illegally constructed RCC columns have been removed/damaged and many are still existing. However, it has been categorically stated that "the petitioner may submit revised building plan for any fresh construction which will be decided as per rules and regulation but Ordinance VIII of 2002 does not provide any relief in respect of regularizaiion of new/fresh construction raised in violation of, or without approved plan". While opposing the prayer made by the petitioner, the respondents have prayed for a direction to the petitioner to remove unauthorized/illegal construction of RCC columns and then apply for revised building plan which will be considered in accordance with law.
4. It appears that by an order dated 22-10-2002 while issuing notice to respondents for 30-10-2002 the parties were directed to maintain status quo and Nazir was appointed as Commissioner to inspect the site at the earliest and submit his report. It further appears from the first report of the Nazir dated 29-10-2002 that he had to inspect the site and submit his report on 30-10-2002 as such he had fixed the date for inspection on 29-10-2002 at 2-00 p.m. But nobody appeared for the petitioner up to 2-45 p.m. In his office to take him to the site for inspection hence he was unable to inspect the site. However, he carried out the site inspection on 31-1G-2002 in presence of the counsel for the petitioner and Assistant Controller of Buildings, Zone XI of KBCA, where he found eleven pillars of eight feet height intact and two pillars were found completely demolished and other two pillars partly damaged. On 6-11-2002 an application under section 3/4 of the Contempt of Courts Act read with Order 39, rule 2(3), C.P.C. Was also filed on behalf of the petitioner alleging therein that after passing of an interim order by this Court, an officer of KBCA addressed a letter dated 28-10-2002 threatening demolition action. The said notice appeared to have been signed by Abdul Rehman Ansari, Deputy Controller of Buildings, hence the necessity had arisen to file such application. Notice of that application was issued for 21-10-2002 to Abdul Rehman Ansari to file his reply in writing and to appear in person on the next date. In response to the said notice Abdul Rehman Ansari appeared and sworn an affidavit stating that he had not signed the said notice and the same was signed by Deputy Controller of Buildings. Zahid Naeem, and initiated by one Mujahid Abbas. Messrs Zahid Naeem and Mujahid Abbas were directed to file duly sworn affidavits on the next date. A plea was taken that the order dated 22-10-2002 was received in the office of Chief Controller of Buildings on 26-10-2002 and in the office of concerned Deputy Controller on 29- 10-2002 at about 4-30 p.m. It was, therefore, ordered that Chief Controller of Buildings or the officer concerned with the receipt and communication of Court Notice should file their affidavit and should remain present in Court on the next date of hearing. Affidavit of Subhan Baig, Upper Division Clerk of KBCA, was filed stating therein that he had received the notice dated 24-10-2002 on 26-10- 2002. The next day was Sunday as such on 28-10-2002 he sent the said notice to legal section of KBCA. He denied to have disobeyed or violated the order of this Court.
5. Since the respondents have categorically made a statement in writing which is not controverted by the petitioner that the building in question viz. Textile Plaza has been constructed before enforcement of Sindh Buildings Control Ordinance, 1979, and if a revised building plan for any fresh construction is filed by the petitioner it shall be decided as per rules and regulations after demolition of present unauthorized construction because Sindh Ordinance VIII of 2002 does not provide any relief in respect of new/fresh construction raised in violation of or without approved plan, we would, therefore, dismiss this petition in limine with an observation that petitioner shall be at liberty to avail the said offer made by the respondents who shall perform their statutory duties without creating unnecessary delay in the matter.
6. In view of the discussion made above and peculiar circumstances of the case, we also do not feel inclined to proceed further with the application under section 3/4 of the Contempt of Courts Act 1976 read with Order 39, rule 2(3), C.P.C. Filed on behalf of the petitioner which also stands dismissed alongwith other listed application.
7. By a short order dated 21-1-2003 this petition was dismissed in limine alongwith the listed applications and these are the reasons for the same.