' AMIR HANI MUSLIM, J.---The petitioner has filed the present petition impugning letter No, K.B.C.A./DCB-DI Saddar Town-II/2004/700, dated 6-7-2004 of the Deputy Controller of Buildings (Zone-D), Saddar Town-II, K.B.C.A., Karachi, addressed to the petitioner asking him to forward his complaint through the Management of Karachi Chamber of Commerce and Industries ("KCCT") to remove the unauthorized construction made by the respondent No, 4 in KCCI building. The petitioner has prayed for following reliefs:--
(i) That impugned letter No,KBCA/ DCB-D/Saddar Town-II/2004/700 dated 6-7-2004 be set aside and respondents Nos.1, 2 and 3 be directed to implement the direction of Chief Controller of Buildings as contained in Annexure P/12.
(ii) Direct respondents Nos.1, 2 and 3 to take action of demolition under section 7(a) of the Sindh Building Control Ordinance, 1979, and to demolish the construction which has been raised in violation of the approved building plan in PMA Building known as Karachi Chamber of Commerce and Industry.
(iii) Direct the respondent No, 1 to execute his direction as contained in Annexure P/2 for demolition of illegal construction raised adjacent to Room No, 68 in the Karachi Chamber of Commerce and Industry.
(iv) That respondent No, 4 be restrained from using the illegal construction raised and they be further restrained from creating third party interest in the aforesaid illegal construction.
(v) That the official respondents may be directed to act in accordance with law and to perform their statutory functions as provided under Sindh Buildings Control Ordinance 1979.
(vi) Cost of the proceedings.
(vii) Any other reliefs or relief which this Hon'ble Court may deem fit in the circumstances of the case.
2. The facts as they appear from the pleadings of the parties are that the petitioner claims to be tenant of Room No,68 of K.C.C.I. (PMA) Building Nichol Road, Karachi, since 1962, on monthly, rent of Rs,33. The petitioner claims that in\ the year 1994 the building of respondent No, 4 was declared to be "protected heritage" within the meaning of Sindh Cultural Heritage (Preservation) Act, 1994. It is\ further claimed by the petitioner that the Management of the respondent No, 4 had raised certain illegal construction in its building, which construction was challenged in this Court in Constitutional Petitions Nos. D-1318 and D-1319 of 1995. It is pleaded that such petitions were allowed and this Court had ordered for demolition of all such illegal constructions.
3. In August, 2003, the Management of the respondent No, 4 again raised illegal construction on the first floor by covering the open duct adjacent to the petitioner's tenement and converted it into a room. The petitioner also claims that on account of this unauthorized construction of the room by covering the open duct, the window and ventilator of Room No, 68 of the petitioner's tenement was blocked. The petitioner further pleaded that the illegal construction of the room was raised without the sanction of the approved plan and he approached the concerned authorities by making representations for demolition. According to the petitioner, the Deputy Controller of Buildings pursuant to the complaint of the petitioner has issued notices to the respondent No, 4 at times and finally the Chief Controller of Buildings, KBCA, issued letter to the different agencies/authorities seeking their aid in the demolition process of the illegal construction of the room. It is claimed that the demolition was to take place on 4-5-2004 but the same could not be undertaken on account of intervention of the then Nazim-e-Ala, City District Government Karachi, respondent No,2, and ultimately the Deputy Controller of Buildings has addressed the impugned letter, hence this Petition.
4. Notices were issued to the respondents and on 11-11-2005 this Court has appointed Nazir as Commissioner to ascertains the factual position in regard to the nature of the construction alleged to have been raised by the respondent No,4.
' On 25-11-2005 the Nazir has submitted his report stating therein that the illegal construction of a room measuring 7 x 18 feet (126 square feet), which was open to sky/duct has been raised by the respondent No, 4 on account of which the ventilator and window on the northern side of petitioner's tenement is closed. Nazir in his report has also stated that on account of this illegal construction the petitioner's air and light were totally affected. Besides the said illegal construction of the room the Nazir's report further revealed that old bath-rooms on the second floor were removed and the old small room was converted into a big hall to be used as library by the respondent No . 4 .
5. On 8-9-2006, on the request of the learned counsel for the respondent No, 4, this Court ordered second inspection by the Nazir. On 18-10-2006 the Nazir after inspection has submitted his report reiterating the fact that on the first floor, adjacent to petitioner's tenement, there existed unauthorized construction of the room by covering the open duct, which totally has affected the air and light of petitioners tenement blocking its window and ventilator. Additionally, in the counter- affidavit filed by the K.B.C.A. It has been stated that on the first floor new construction in the open space/duct has been raised by converting it into a room. In the counter-affidavit filed by the respondent No, r it has been stated that the 'petitioner is an illegal occupant and the Management of the respondent No, 4' has only undertaken repair work inside the building without disturbing the structure and outside elevation, after seeking permission from the relevant forum. In the counter- affidavit filed by the respondent No,4 it may be noticed that the illegal construction of the room by covering the open space/duct on the first floor adjacent to petitioner's tenement, has not been specifically denied. Instead it has been pleaded by the respondent No, 4 that on account of vengeance the present proceeding has been filed by the petitioner, as his status as tenant has been challenged by the respondent No,4.
6. The learned counsel for the petitioner has submitted that the petitioner is a tenant and he has not approached this Court in regard to declaration of his status as a tenant. He submitted that his right of privacy, air and light has been infringed on account of illegal construction of room made by the respondent No,4 by converting the open duct into a room and a wall has been erected in such a manner that it has blocked the ventilation and window of the petitioner's tenement. He further submitted that his contentions are substantiated by the two Reports of the Nazir as well as by the counter-affidavit of the K.B.C.A. The learned counsel for the respondent No,4 on the other hand, has stated that permission was sought from the K.B.C.A. To undertake repair work as the Heritage Department, Government of Sindh did not respond to the request and the management has not raised any illegal construction except that it has undertaken the repair work.
7. We have heard the learned counsel for the parties and have perused the record. There is no denial of the fact either in the counter-affidavit of the respondent No, 4 or during the argument that an unauthorized room has been constructed on the first floor by the management of the respondent No,4 covering the open c space/duct under the garb of repairs on account of which the window and the ventilation of the tenement of the petitioner have been completely blocked.
The learned counsel for the respondent No, 4 concedes that this room is unoccupied. The only point which this Court is required to decide is whether such an unauthorized room by which light and air of the petitioner's tenement has been blocked could be ordered to be demolished if it is raised C unauthorizedly. The two Reports of the Nazir as well as the counter-affidavit of the K.B.C.A.
Are clear that the room was constructed unauthorizedly and has blocked the ventilation and light of petitioner's tenement.
8. Under these circumstances, we are of the view that such unauthorized construction of the room on the first floor of the KCCI building by which petitioner suffers has to be pulled down and the area has to be restored to its original position. It is the obligation of the K.B.C.A. To remove unauthorized construction, raised without approved plan as per their counter-affidavit and as such, they are required to discharge their duties under the Sindh Buildings Control Ordinance, 1979 by removing the unauthorized construction of the room. Accordingly, we direct the K.B.C.A. To demolish the room, which has been constructed unauthorizedly, on the first floor of KCCI Building adjacent to the petitioner's tenement, and restore the area to its original position. The K.B.C.A. Shall report compliance within fifteen days after removal of the unauthorized construction.
9. Above are the reasons of our short order dated 10-4-2007 by which we had allowed the petition.