1. This petition was -filed by the, petitioner for the following reliefs: "(a) A declaration that the letter No. KBCA/DCBII/JMT/2004/514/04, dated 11.8.2004, letter No.KBCA/DCB-II/JMT/2004/35/04, dated 12.8.2004, letter No.KBCA/BCD- II/JMT/2004/306/04, dated 13.8.2004 and letter No.KBCA/DCB-II/JMT/2004/440/04, dated 30.8.2004 are all illegal and have been issued without ,lawful authority and, all such illegal letters are liable to be withdrawn by respondent No.2 and be set aside by this Hon'ble Court. fib) A Declaration that the petitioner is competent and entitled to raise construction on the plot No.66-I-M, Block 6, PECHS, Karachi, measuring 521.35 sq. Yards strictly in accordance with approved building plan.
(c) Mandatory injunction directing respondent No.1, 2 and 3 and the officers working under them to de-seal the above plot premises and allow the petitioner to raise lawful construction strictly in accordance with the approved building plan.
(d) Prohibitory injunction restraining respondents No.1 to 3 and officers and persons working under them from further demolition of the construction raised by the petitioner in accordance with the approved building plan.
2. 11 The facts are that the petitioner admittedly is owner of the plot No.66-1-M, Block-6 PECHS Karachi (the plot). The concerned authorities on his application approved the building plan and he started raising construction thereon. However the respondents raised number of objections against construction being raised by the petitioner and ultimately, by the impugned order dated 11.08.04.
3. The approved plan granted in favour of the petitioner by the respondent No.2 was withdrawn.
4. The controversy arose as on the back of the plot a Kachi Abadi, had cropped up on 40 feet wide road causing obstruction for the owners/occupants of the plot of respondents No.6 and 7 facing on the said road. It appears that till the plot was laying vacant it was used as alternate passage by the owner/occupants of the plots facing Kachi Abadi on the road.. Since the present petitioner started raising construction the respondents No.6 and 7 who were utilizing the plot as passage raised objections as they had no other passage to utilize for coming on the road which was being enjoyed by the Kachi Abadi as observed above. In the circumstances, the respondents first restrained the petitioner from raising construction and subsequently the. Respondent No.2 withdrew the approved plan.
5. The matter was heard on last two three dates. Yesterday Mr. Akhtar Hussain voluntarily proposed that without prejudice to . His contentions and legal rights over the subject property/plot,' the petitioner has agreed to leave a space of 7 feet in width as passage temporarily to facilitate the occupants of plots 65-1-M and 66-1-L, provided he is allowed to raise construction over his plot No. 66 1-M. This proposition was to be considered by the other side. Respondent No.6 Nasir Ehtisham and Syed Javed Saeed the son of respondent No.7 are present.
6. We have considered the submissions. The petitioner being owner of the plot is entitled to enjoy all rights as per metes and bound thereof. He is also authorised to raise construction thereon according to law. He is not obliged to provide any passage or space for the occupants of the plot which are effected by the Katchi Abadi. In fact it is responsibility of the respondents No.1 to 5 to see that the Katchi Abadi is removed and the respondent No.6 and others like them are provided safe and comfortable passage. There is no plausible reason for respondents No.1 to 5 for taking any action against the construction being raised as per approved plan by the petitioner.
7. However Mr. Akhtar Hussain submitted that till the question of passage for respondents No.6 & 7 is decided and provided by the respondents No. 1 to 5 by removing the Katchi Abadi from the 40 feet wide road, petitioner as a matter of grace is ready and willing to provide a passage from his plot.
8. He submitted that he is ready to keep open a space upto 10 feet in width for the utility of the respondent No.6 and 7, provided the petitioner is permitted to rise construction on the upper floor according to rules and regulations for the size of the plot which will not affect the passage on the ground mentioned herein-above.
9. Mr. Anwer Ali Shah submitted that since they have already cancelled the approved plan of the petitioner, therefore, it is to be once again rectified by the KBCA as due to the changed situation there will be structural changes into the building Mr. Akhtar Hussain submitted that he apprehends that KBCA shall once again come in the way of the petitioner and it will consume further time.
10. In these circumstances, Mr. Akhtar Hussain may advise his client to submit the application for rectification within ten days, which will be examined and approved strictly in accordance with law by the KBCA with in 15 days thereafter no fresh cost is to be paid by the petitioner for the rectification as it was no fault on his part and the approved plan was cancelled illegally.
11. This petition is disposed of along with listed applications in the above terms.
12. We have also examined the contempt application. Since the alleged contemnors have tendered unconditional apology and stated that they have no intention to be disobedient to the Court orders, hence Mr. Akhter Hussain does not seriously press this application. Application, therefore, is disposed of.