' SABIHUDDIN AHMED, C J.---The petitioner appears to be aggrieved by the construction of a building constructed by the respondent No,2 adjacent to the petitioner's own building. Admittedly a complaint in this respect was made by the petitioner to the respondent No,1 on April 3, 2002. The petitioner primarily objected to the 4th floor being constructed by the respondent No,2 and further complained that the chimneys were very close to their wall and he is affected by the chimneys constructed by the respondent No .2.
2. The admitted position appears to be that initially the building was constructed by the respondent No,2 without any approved plan. Nevertheless upon the promulgation of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002 the respondent No,2 applied for regularization of the aforesaid building on 15-11-2002 i,e, within the period of operation of the Ordinance (which was made effective for a period of one year since its promulgation 19th March 2002) and approval however was accorded by the respondent No,1 only on 15-10-2004.
3. Learned counsel for the petitioner in the first instance argued that no such approval could be accorded after the expiry of the Ordinance. We regret our inability to share the view on the ground that upon having applied for regularization within time a vested right had accrued in favour of the respondent No,2 which could not be impaired by the expiry of the Ordinance. Learned counsel then argued that the building having been raised without an approved plan was ab initio illegal and not merely irregular capable of being regularized under section 5 of the Ordinance, 2002.
4. We also find little force in this contention. Indeed the expressions illegal and irregular have been used in respect of judicial or quasi-judicial pronouncement or certain contracts but section 5 is very clear inasmuch as it makes any building constructed in violation of the Building Control Ordinance regularizable. Therefore, even if the building is raised by the respondent No,2 was illegal it could be regularized upon fulfilment of certain requirements.
5. Nevertheless we are aware that the provisions of the 2002 Ordinance were discussed in some detail in a Division Bench judgment of this Court in Ardeshir Cowasjee and others v. Province of Sindh and others. We had inter alia taken the view that only building completed in all respects could be regularized under the aforesaid Ordinance. We are also aware of a somewhat contrary view taken by another Division Bench of this Court which appears to be that even buildings which were under construction could also be regularized. At the same time we are aware that leave to appeal against the judgment in Ardeshir Cowasjee's case had been granted by the Hon' ble Supreme Court and its effect has been suspended. However, we are informed that the appeal is yet to be decided.
6. The admitted factual position appears to be that three floors had already been constructed and the petitioner was only aggrieved by the construction of the fourth floor. Under section 2 (d) of the 2002 Ordinance a building had been defined to mean a building or portion thereof constructed on a plot. In the circumstances, following the view taken in Ardeshir Cowasjee's case we are inclined to hold that regularization of the building to the extent of three floors was permissible under the said Ordinance. We are however informed that the chimneys causing environmental hazards have also been removed. For the foregoing reasons we would order that the approval granted by the respondent No,1 would only be confined to the first 3 floors of the building. The 4th floor however would be illegal and the respondent No,2 are restrained from raising it and if it has been so raised the respondent No,1 are directed to demolish it.