1. The appellants, who are purchasers of certain shops in a building known as 'Trade Tower' on Abdullah Haroon Road, Karachi, appear to be aggrieved by an order of a learned Single Judge on the original side, dated 19-8-2004, dismissing the appellants' application for interim relief seeking to restrain the Respondent No,1 from taking action under section 7A of the Sindh Buildings Control Ordinance, 1979 ("Ordinance").
2. ' The relevant facts appear to be that a plan for construction of a ground plus six floor building as well as the basement, reserved for car parking, was granted to the respondent No,2 by the respondent No,l. It appears that subsequently three additional floors were constructed anti shops were also constructed in the basement, which has been described by the appellant as "lower ground floor". It seems that the respondent No,2 sold different shops and offices in the building to several personal including the appellants. On 20-10-2003, a notice was served upon certain occupants to the effect that shops/offices/show rooms had been constructed in the basement approved for car parking and the occupants should remove the unauthorized structure within three days, failing which, inter alia, action under section 7A of the Ordinance may be taken. It appears that subsequently upon the undertaking of the respondent No,2 dated 1-11-2003 to the effect that car parking space shall be provided on the roof of the buildings through a car lift or on the rear side of the adjacent plot. The premises was desealed by order passed on the same day.
3. Subsequently, the undertaking was never honoured and as such the respondent No,1, according to the appellants, threatened to demolish the shops/show rooms. The apprehended action was called in question in Suit No,1188/03 and interim relief seeking to restrain the said respondent from doing so was sought. The application for interim relief, however, came to be dismissed by the impugned order.
4. ' Mr. Shahenshah Hussain, learned counsel for the appellants, attempted to argue in the first place that there was no basement in the approved plan and the lower ground floor, upon which the shops, purchased by the appellants, were located., could not be classified as basement. This contention was strongly denied by Mr. Shahid Jamiluddin, learned counsel for respondent No,l.
5. However, we think it is not necessary to enter into this controversy at this stage. Evidently the approved plan did provide car parking space and it is not the appellants' case that such space has been provided anywhere else in the building.
6. Moreover, there is nothing to show that the appellants occupied the building only after an occupation certificate in terms of the provisions of section 6(2) had been granted.
7. ' The main thrust of the appellants' contention appear to be that the original plan was subsequently revised and three additional floors together with car parking space on the roof top was approved by the respondent No,1. The respondent No,1 has, however, asserted that while architectural approval for three additional floors was granted no final approval was accorded. In any event no provision for car parking space was made even in the revised architectural plan.
8. ' Mr. Shahenshah Hussian pointed. Out that in the written statement in HCA No,163/04 the respondent No,1 has clearly stated that approval of three additional floors was granted in the revised plan, whereas in the counter affidavit such approval is stated to be confined only to "architectural approval". Nevertheless this aspect of the controversy also does not appear to be relevant for the purpose of this appeal because it is nowhere admitted by the respondent that any revision of plan in respect of car parking space was allowed. It may be added that in any event, as observed in the Hon'ble Supreme Court in Abdul Razzak v. KBCA PLD 1994 SC 512, their Lordship have held that the power of the respondent No,1 to allow revision of plan is a limited power and no such power for the purposes of regularizing extra floors can be exercised. Even when the legislature decided to enlarge the powers of the respondent No,1 to grant post facto approvals to such buildings vide the Sindh Regulation and Control (Use of Plots and Construction of Buildings)
9. Ordinance, 2002, certain statutory factors on the powers of the respondent No,1 were laid down.
10. Section 5, which seems to grant a blanket power to regularize illegally constructed building, contains a proviso to the effect that no building shall be regularized if it uses parking space for other purposes until such space is stored to its original position.
11. ' It may, therefore, be seen that it is not merely a question of fact whether revised plan allowing parking space at some other place was approved, but even under the law the respondent No,1 had no authority to revise a plan to such extent. We may also observe that acceptance of undertaking of the respondent No,2 for the purpose of desealing the premises was also totally illegal and appears to have been passed only with mala fide intention.
12. We are afraid the contention that the appellants are mere innocent purchasers of the shops/show rooms and should not be arrayed for the wrongs of the respondent No,2, cannot be sustained either. Indeed as held by the Hon'ble Supreme Court in Muhammad Saleem and others v.
13. Administrator, Karachi Metropolitan Corporation 2000 SCM R 1748, the appellants cannot acquire better rights than their predecessors and in any event when they chose to purchase properties without verifying compliance of the requirements of law enacted more than 20 years ago, they can only blame themselves.
14. ' We would also share the views of the learned Single Judge with respect to the performance of the officers of the respondent No,1 and must express our anguish over the fact that no serious action appears to be forthcoming.
15. ' For instance we find no logical reason in evolving the procedure of issuing an architectural approval to a builder without finally approving the revised plan, which would only enable him to sell such property to innocent purchasers or create legitimate expectations.
16. In the circumstances we would dismiss these appeals and send a copy of this order along with that of the learned Single Judge to the Provincial Ombudsman to look into the question of extensive maladministration prevailing in the respondent No,1. A copy of this order may also be forwarded to Chief Controller of Buildings, Karachi.