' AJMAL MIAN, J.-- The petitioner through this petition has impugned notice, dated 10-1-1983, issued by respondent No,1 under section 7-A, of the Buildings Control Ordinance, 1979 (hereinafter referred to as the Ordinance), whereby the petitioner was directed to remove the unauthorized construction of the boundary wall.
2(a) In support of the above petition, Mr. Ansar Hussain, learned counsel for the petitioner has urged as follows:-
(i) that the definition of the word, 'building' given in section 3(d) read with section 6 of the Ordinance, does not cover a boundary wall, and, therefore, the impugned notice is without jurisdiction.
(ii) That since the construction of boundary wall was raised prior to the enforcement of the Ordinance the provisions of the same cannot be pressed into service by respondent No,1.
(b) On the other hand Mr. Mirza Yaqoob Baig, learned counsel for respondent No,1 has contended as under:-
(i) That the term 'building' includes a boundary wall which is an appurtenant to the building.
(ii) That the petitioner has not averred in the petition that the boundary wall in question was constructed prior to the enforce ment of the Ordinance, but on the contrary the averment is that the same was raised in 1982 i.e, several years after the enforcement of the Ordinance.
' Messrs Muslim Naqvi and Sher Afghan, appearing for the K.M.C. and for the Society respectively have stated that they have nothing to say about the impugned notice. However, the contention of Mr. Muslim Naqvi was that the land in question is a part of kidney hill, K.D.A. Scheme No,32 and that the same has been unauthorized occupied. In our view, the question of unauthorized occupation is beyond the scope of the present petition as in the present petition the above notice has been impugned which relates to the unauthorized construction.
3. Adverting to the first contention of the learned counsel for the petitioner and of respondent No,1, it may be observed that Mr. Ansar Hussain has referred to sub-clause (d) of section 3 and sections 6 and 7-A of the Ordinance, which read as follows:- "3(d).-- "building" means a building or part thereof and includes all fittings, fixtures, installations, signs and display structures of the building, but does not include any building notified by the Authority.
6. Approval of Plan.-- (1) No building shall be constructed before the Authority has, in the prescribed manner, approved the plan of such building and granted no objection certificate for the construction thereof on payment of such fee as may be prescribed: ' Provided that in the case of a building the construction whereof has commenced before coming into force of this Ordinance, the Authority's approval of the plan and no objection certificate shall be obtained not later than six months after the enforcement of the Ordinance.
' Explanation.-- The word 'construct' with all its variations used in this section and hereafter shall include 'reconstruct' with all its variations and, additions or alterations.
(2) No building mentioned in subsection (1) shall be occupied by any person or shall be allowed by the builder to be occupier, before the Authority has, on application of the occupant or owner, issued occupancy certificate, in such manner as may be prescribed.
(3) No building mentioned in subsection (1) shall, except with the permission of the Authority, be used for the purpose other fiat than that for which its plans were approved.
(4) Where the Authority is satisfied that the purpose for which the building is desired to be used is consistent with the approved plans of the building, it may grant the permission under sub section
(3) on such conditions and on payment of such fees as it may fix.
7-A, Violation of certain provisions.-- Where the provisions of subsection (1) of section 6 are violated the building may without prejudice to any other action including sealing of the building or ejectment of the occupants be ordered by the Authority or any Officer of the Authority authorized in this behalf to be demolished, at the cost of the builder in the case of public buildings and the owner in other cases."
' It may be noticed that the term "building" has been defined as means a building or part thereof and includes all fittings, fixtures, installations, signs and display structures of the buildings, but does not include any building notified by the Authority. Whereas subsection (1) of section 6 provides that no building shall be constructed before the Authority as defined in the Ordinance, approves plan' of such building and grants no objection certificate for the construction thereof on payment of such fee as may be prescribed. Proviso to subsection (1) provides that in case of a building the construction of which had commenced before the coming into force of the Ordinance, the Authority's approval of a plan and no objection certificate shall be obtained not later than six months after the enforcement of the Ordinance. Explanation to the above proviso defines the word "construction" and provides that it shall include 'reconstruction' with all its variations and, additions or alterations. Subsection (2) of the above section prohibits the occupation of a building constructed without obtaining an occupancy certificate from the Authority, whereas subsection (3) provides that the building shall not be used for purpose other than that for which the plan was approved.
' It may also be noticed that section 7-A was added by the Sind Buildings Control (Amendment Ordinance 1982) (Sind Ordinance III of 1982) gazette on 6th March, 1982, which provides that when the provisions of subsection (1) of section 6 are violated the Authority without prejudice to any other action including sealing of the building or ejectment of the occupant, may order its demolition.
4. Mr. Ansar Hussain has referred to the case of M.A. Qadar Farooqui and 2 others v. The Master Plan Department and another reported in PLD 1980, Kar. 486, in which a Division Bench of this Court while construing section 7 section 11(2) held that the above provisions do not contain the power to order demolition even of the unauthorized structure. It may be observed that the above judgment was delivered on 4th May, 1980, whereas section 7-A was enacted in March, 1982. Since the impugned notice has been issued under section 7-A of the Ordinance, the above cited case has no relevancy. The point in issue is as to whether respondent No,1 is competent in law to issue the impugned notice under section 7-A.
5. .Mr. Mirza Yaqoob Baig, learned counsel for respondent No,1 has invited our attention to an unreported order, dated 20th February, 1984, passed in C.P.No,D-928 of 1983, Abid Hussain v. Deputy Controller of Buildings, Building Control, Authority by a Division Bench of this Court in which the very contention that the definition of the word 'building' given is section 3(d) of the Ordinance does not cover a boundary wall was canvassed. The learned Acting Chief Justice while repelling the above contention observed as follows:- "The only point, that requires consideration, is, whether the impugned notice given by the respondent to the petitioner, directing him to demolish the unauthorized construction is open to any legal objection. Mr. Usman Ghani Rashid had stated before us that the only construction was a boundary wall, and, according to him, the boundary wall could not fall within the meaning of the word "building" as used in clause (d) of subsection (1) of section 2 of the Sind Buildings Control Ordinance. The word "building" in defined as follows:- "(d) 'Building' means a building or part thereof constructed or being constructed by a builder in accordance with the provisions of this Ordinance; ' It would appear that the word has been defined in this statute with a special significance, so as to achieve the objects of this statute, but, even if we were to understand the word 'building' in its ordinary terminology, one cannot escape the conclusion that compound wall is a part and parcel of a building. It is not necessary to give the word a restricted meaning, because that might create even complications in ordinary affaiRs, Suffice to say that even a compound wall has to be constructed just as a building has to be. It would not idle to hold that compound wall is not part of a building."
We are also inclined to take the view that a boundary wall is covered by the definition of the words building given in section 3(1)(d) of the Ordinance, as it is an appurtenant to the main building. In this A view of the matter admittedly the petitioner had not obtained the approval of the authority before putting up the construction of the boundary wall and, therefore, there has been violation of subsection (1) of section' 6 as to attract section 7-A of the Ordinance.
6. As regards the above second contention' of Mr. Ansar Hussain, it may be observed that it has not been expressly pleaded in the petition by the petitioner that the boundary wall in question was raised before the enforcement of the Ordinance. On the other hand, from the contents of paras. 5 to 7 of the unlamented petition, it seems that the averment of the petitioner was that she was allotted the additional open land measuring 1410 square yards on 19th August, 1982, which was allowed to be annexed with Plot No,56 of the petitioner on payment of Rs,35,250 and that after completing all the formalities the boundary wall was constructed. The above averments indicate that the case pleaded in the petition is that the boundary wall was raised after the compliance of all the formalities upon the allotment of the above additional land (which was made in August, 1982), whereas the Ordinance came into force in 1979. The above contention, therefore, is also not tenable.
' We, therefore, dismiss the above petition with no order as to costs.