' By consent we decided to admit this petition and to undertake final hearing thereof. Pursuant to our order dated 18-2-2003 learned Advocate-General Sindh and Mr. Zahid Jamil, Advocate were heard on the question as to whether the provisions of the Building Control Ordinance were applicable even in cases where the property in question was located within a Katchi Abadi.
2. Mr. Zahid Jamil in a well-prepared address pointed out that two decisions of this Court reported in: (1) M/s. Zeshan Builders v. KBCA (1992 M LD 2259) and (2) Abdul Ghani v. Government of Pakistan (1996 CLC 1914) holding that the said Ordinance was not applicable in Contonment Areas proceeded on different legal principles and no analogy could be drawn therefrom in respect of the facts of the present case. He also pointed out that Section 35 of the Katchi Abadis Act enables to exclude the operation of certain laws from a Katchi Abadi but that could only be done through a proper notification and not otherwise.
3. Mr. Anwar Mansoor Khan, learned Advocate General Sindh, also supported the same view and elaborated the provisions of section 35 to point out that the provisions of the Ordinance would remain operative in Katchi Abadis though the functions of the Building Control Authority could be conferred upon and performed by the Katchi Abadi Authority subject to such restrictions and conditions as may be specified.
4. Mr. Aijaz Ahmad, learned counsel for respondent No,1, was unable to controvert the above assertions or place before the Court notification properly issued under section 35 above.
5. In the circumstances we are clearly of the view that the provisions of the Building Control Ordinance remained clearly applicable even if it be assumed that the building raised by the respondent No,1 falls within a Katchi Abadi.
6. Coming to merits, the Nazir of the Court who was appointed Commissioner visited the premises and found some construction raised which according to the petitioner was raised without an approved plan from the respondent No,2. The respondent No,1 never controverted this allegation and Mr. Anwar Ali Shah, learned A counsel for respondent No,2, reiterated that no plan was approved. For the foregoing reasons we have no option but to allow the petition and hold that the construction raised by the respondent No,1 is illegal and direct the respondent No,2 to demolish the same in accordance with law and report compliance within three months.
7. The petition stands disposed of together with the pending application. We must record out gratitude to Mr. Anwar Mansoor Khan learned Advocate-General Sindh, and Mr. Zahid Jamil, Advocate Barat-law for their valuable assistance.
1. The learned Assistant Advocate- General assails the findings primarily on the ground of misreading and non-reading of evidence and also seeks to produce certain documents as additional evidence. The learned counsel for the respondent