' MUHAMMAD ZAHOORUL IIAQ, J.--This petition is directed against the notice of removal of unauthorized construction issued by Master Plan and Environment Control Department of Karachi Development Authority, dated 5-12-1981, to the owner of Plot No,142-2-H, Block-2, Pakistan Employees Co-operative Housing Society, Karachi. The contention of the petitioner is that he was allotted a plot bearing No,142-2-H, Block-2, P.E.C.H.S Karachi measuring 458 sq. yds by the Pakistan Employees Co-operative Housing Society Limited, Karachi, on 5-5-1980, vide Annexure "A" to this petition. Annexure "B" to this petition shows that a sum of Rs,2,600 has been paid by the petitioner to P. E. C. H. S. through Habib Bank Limited, Karachi, as development charges and premium of the plot. The petitioner has also filed Annexure "C" which is a photo stat of the minutes of the meeting where Mr. Jami, Joint Secretary, Ministry of Works, Mr.Z.A.Nizami, Director-General, K.D.A. and Mr.Muhammad Ishtiaq, Deputy Controller, Planning of Master Plan and Environment Control attended the meeting on 27-11-1980 and item No,16 of the same shows that creation of plots in Row No,142, Block-2 P.E.C.H.S. near Altaf Nursery had been approved by the Ministry of Works and therefore, it was decided that no objection certificate in respect thereof may be issued.
2. We may mention here that the learned counsel Mirza Yaqoob Beg appearing for K.D.A. has pointed out that the photo stat did not bear any endorsement and thereupon the learned counsel for the petitioner showed the legible photostat copy of the same which apparently bears the signature of Mr.Muhammad Ishtiaq, Deputy Controller signed on 31-12-1980. This position was also made clear in the rejoinder affidavit of the petitioner dated 1-4-1984 and the same position was not challenged thereafter. The objection is therefore not substantiated.
3. On 15-1-1981, the Deputy Controller of Buildings of M.P & E.0 Department of K.D.A. issued No Objection Letter to P. E. C. H. S in respect of various plots including Plot No,142-2-H, Near Altaf Nursery in P. E. C. H. S. stating that they had no objection from the planning point of view to the creation of the proposed plots in the proposed part layout plan of P. E.
C. H. S. This letter is signed by the same gentleman who is shown to be a participant in the meeting of 27-11-1980 and who has signed the minutes of that meeting in Annexure "C". Along with this letter of 15-1-1981 there is also a proposed layout plan Annexure "D" to this petition where plot No,14 2-2-H is shown near the nursery plot. The abovementioned letter of Deputy Controller of Building dated 15-1-1981 however makes it specific that the no objection issued by this authority was subject to the approval of the Ministry of Works, Islamabad.
4. Thereafter, the petitioner applied for approval of building plan to the Deputy Controller Buildings, K. D. A. respondent No,4, on 10-12-1981 and on 26-12-1981 he wrote another letter to the same department for approval of his plan and then again on 18-1-1982 the same was reiterated.
However, on 5-12-1981, the Assistant Controller of Buildings M. P. & E. C. Department of the K.D.A. issued the impugned notice and gave its reason that the plot did not exist on the K.D.A. approved lay out plan. The threat of removal of the unauthorized boundary wall was repeated on 17-1-1982.
5. The contention of the petitioner is that the action of the respondents Nos.1 and 4 in asking for the removal of the boundary wall was unwarranted and in any case the reason given in the same is completely uncalled for Mirza Yakoob Beg, the learned counsel for respondents Nos.1 and 4 has submitted that the action was justified in view of the fact that there was no specific approval from the Government of Pakistan to the master layout plan as proposed by P.E.C.H.S. Mirza Yaqoob Beg further contended that the plan has not been approved and, therefore, construction of wall was absolutely unjustified and hence the notice of removal of boundary wall was within the powers of the issuing authority.
6. It appears to us that the respondents No,1 and 4 are proceeding under some misapprehension. It would be pertinent to point out that respondent No,3, the P.E.C.H.S., has not opposed this petition.
They have also not filed any counter-affidavit controverting the allegations raised in the petition, and therefore they are deemed to have accepted whatever is stated in this petition. Mr.Abdul Sattar who is present before us today has stated that he is not in a position to say anything as there was an enquiry going on before the Martial Law Authorities and that on the recommendation of the Martial Law Authorities the P.E.C.H.S. has issued notices to various allotted for cancellation and restraining the allotted from further construction. However, this is merely a statement of the learned counsel for respondent No,3 without there being anything on the record in respect of the same. It is only respondent who in his counter-affidavit dated 31-1-1984 has pointed out that Summary Military Court No,7, Karachi directed the respondent No,4 that construction over plots allotted by the management of respondent No,3 from 3-3-1978 onward be stopped. They have file a copy of the letter of P.E.C.H.S. addressed to them in this regard. This letter only shows that there was a direction of stopping the construction only whereas there was no direction of the cancellation of the plots. Even the letter from the Summary Military Court No,7 dated 20-12-1982 produced by respondent No,4, which was addressed to the Administrator P.E.C.H.s. shows that P.E.C.H.S. was directed for the suspension of any construction work over the plot allotted by the P.E.C.H.S. from 3-3-1978 onwards. This letter does not show any direction for cancellation of the allotments and it only speaks of the suspension of construction. This letter does not direct removal of existing constructions. The only point urged by Mr.Yakoob Beg in this case was that the Central Government had not approved part layout plan. This does not spear to be correct position as in this case the Federation of Pakistan has been impleaded as respondent No,2 and notice was issued to them and there is no counter-affidavit from the Government of Pakistan controverting the allegations raised in this petition. Mr.Aziz Munshi, learned Deputy Attorney-General is present on Court notice and on our inquiry he stated that he has received no instructions from the Government of Pakistan in this regard and that in any case no relief has been claimed, from this Court against the Government of Pakistan, in this petition.This position appears to be correct. In any case, the petitioner was not obliged to claim any relief against the Government of Pakistan because the Government of Pakistan had not taken any action against the petitioner and the Government of Pakistan was merely added as a pro forma respondent and if they wished to contest the petition then they would have done so. However, the stand taken by the petitioner in this case appears to be justified and in any case it does not lie in the mouth of the Deputy Controller, Buildings Mr. Muhammad Ishtiaq to challenge the creation of the plot in the P.E.C.H.S. in view of the fact that he is himself the signatory of the minutes of the meeting of 27-11-1980.1t is Annexure "C" to this petition where there is a mention of plots having been created in Row No,142, Block-2, P.E.C.H.S., Karachi. Mores, because he has himself issued no objection, on 15-1-1981, as the Deputy Controller, Buildings to the creation of plots in Row No,142, Block-2 as proposed in the part layout plan. Even the proposed part layout plan is signed by the Deputy Controller, Buildings and it shows Plot No,142-2-H existing in Block-2 of P.E.C.H.S.
7. It, therefore, appears to us that the stand taken by the respondent No,4 that such a plot did not exist is not correct and hence the notices in question issued on 5-12-1981 and 17-1-1982 are completely unjustified and without lawful authority and they are declared to be as such and hence demolition under those notices cannot be made by respondents Nos.1 and 4. It is, however, made clear that this direction does not concern the enquiry which is being conducted by the Martial Law Authorities in respect of the very creation of those plots by the P.E.C.H.S.