1. ' ABDUL RAHIM KAZI, J.---The facts leading to the present petition which was instituted on 21-3-1993 are that the petitioners are residing in their houses bearing Nos.7/4 to 7/7 in 4-F, North Nazimabad, Karachi opposite the plot of land bearing No,ST-8 Block-C/4, Nazimabad, Karachi which was reserved for establishment of bank in the original plan and that recently the petitioners have noticed that the respondent No,4 had established its site office, installed boardings banners and sign board under the name Mahrine View and started digging the earth and raised pillars and columns over the said plot. It is also in the petition that the respondent No,4 had advertised and announced his intention to construct four-storeyed flats on the site. In these circumstances, the petitioners had moved the present petition seeking the following reliefs:-- "(a) Direct the respondents 1, 2 and 3 to carry out their statutory duties and in performance of the same restrain the respondent No,4 from engaging in the unlawful construction of multi-storeyed flats over the plot reserved for the bank in the layot plan.
(b) Direct the respondents No,2 and 3 after ejecting the employees, contractors, agents of the respondent No,4, to demolish the illegal/impugned construction from the said Plot No,St-8, Block C/4, Nazimabad, Karachi.
(c) Declare that said plot being reserved and earmarked for the bank site in the layout plan cannot be converted and used for raising multi-storeyed flats thereon as such conversion of use of aforementioned plot by the respondent 2 and approval of building plans by the respondent No,2 as for multi-storeyed flats is against the Karachi Building and Town Planning Regulations, K.D.A. Order V of 1957 and Sindh Building Control Ordinance, 1979.
(d) To award costs of this petition; and
(e) Grant any other relief, which under the circumstances of the case, this Hon'ble Court may deem fit and appropriate."
2. ' The petition is contested by the respondents who have filed their counter-affidavits. Their case is that the Plot No,ST-8, Block-C/4, Nazimabad, Karachi hereinafter refeired to as the disputed plot has always been a commercial plot which was trespassed by one Abdul Rasheed and subsequently be a general body Resolution No,221 passed on 20-4-1992 the K.D.A. Regularised the same in his name and transferred it to said Abdul Rasheed for occupancy value of Rs,2,600 per sq- yd., total being Rs,28,60,000 as the area of the plot is 1,100 square yards. It is also their case that the respondet No,4 is raising construction over the disputed plot in consequence of building plan duly approved by K.D.A. And K.B.C.A. And that they have paid the lease money as well as transfer fee and the plot now stands transferred to the partners of the respondent No,4. We have heard the learned counsel for the petitioners and M/s. S.H. Kazilbash, Advocate, Muhammad Iqbal Memon and Mr. Khalilur Rahman, Advocate for respondents Nos.2 to 4. None is present for the respondent No, 1 . The contention raised by the learned counsel for the petitioner is that the disputed plot is an amenity plot having been reserved for a bank and the same could not be used for the purposes of raising a multi-storeyed building which amounts to commercial use. He has submitted that the letters S.T. Which are pre-fixed to Plot No,8 stand for "special type" and, therefore, it could not be the Flat Site. He has submitted that the plots reserved for Flat Sites are given the numbers with pre-Fix of "FL". The learned counsel has referred to the sketch of the area placed by him on record at page 113 of the R & P. He has pointed out that in layout plan the disputed plot is shown to have been reserved for a bank and that the same is opposite the residential houses of the petitioners. He has submitted that the area is a residential area and the bank is a facility provided to the residents and, thus, the same could not have been allotted for commercial purposes. The learned counsel for the petitioners has not been able to substaniate this contention with any relevant law or rules to show that the letters S.T. Stands for "special type" and that a bank is not a commercial organization.
3. As against this Mr. Khalilur Rahman, Advocate has submitted that this plot had been a commercial plot from the very inception. He has referred to the counter-affidavits filed by the Director-General of K.D.A. And the Additional Director (Commercial) of K.D.A., namely, Mr. S.A. Shahenshah in both these affidavits it has been stated that the disputed plot is a commercial plot and the letter ST is an abbreviation of 'Site'. He has referred to Resolution No,221 of 20-4-1992 whereby the allotment in favour of its previous owner Abdul Rasheed was regularised. The learned counsel has then referred to the documents of lease in favour of the petitioners by respondent No,4. In clause 8 of this lease deed it has been provided that this plot is leased out for the purpose of construction of a building at that the said plot and building and structures thereon shall be used for commercial- cumresidential purposes. He has also referred to the letter dated 7-8-1993 issued by the K.D.A.
4. Which shows that the respondent No,4 have been authorised to perform the acts and functions mentioned thereunder i,e, sub-divide the subjected commercial plot according to the approved proposed building plan of K.B.C.A., K.D.A. The learned counsel has then referred to challan of payment of lease money and conversion charges. He has also referred to various advertisements issued by the K.D.A. For auction of various plots which show that the S.T. Numbers are given to commercial plots. From all these facts the learned counsel has submitted that in such circumstances the disputed plot is established to be a commercial plot, and, therefore, the same can in no circumstances be treated an amenity plot.
5. ' Mr. Khalid Hameed, Advocate for the petitioners has submitted that, of course, the letters S.T. Have not been defined as---where in K.D.A. Order or any other relevant rules but because the same have not been defined otherwise, therefore, it should be treated to stand for "special type". However, Mr. Khalilur Rahman, Advocate has referred to Schedule G of the Karachi Building and Town Planning Regulations Part II, wherein under Part II(f) (v) business offices have been defined to include banks and real estate offices. Clause (f) deals with commercial (trade) uses. The learned counsel for the petitioners has also referred to K.D.A. Disposal of the Land and Estate Rules, 1971. The Rule 10(1) pertains to commercial plots while Rule 11(1) deals with amenity plots which provides that amenity plot includes Site for Schools, other Educational Institutions, Hospitals, Maternity Homes, Mosques, Imam Baras,, any of the running schemes of the authority including the Clifton Schemes and that the same are to be allotted to deserving registered and charitable institutions. From this the learned counsel has submitted that the bank cannot be treated as an amenity. He has then referred to Martial Law Order No,247, Published in Sindh Government Gazzette of 18-12-1984 (PLD 1985 Provincial Statutes Sindh (14). In this Order explanation to paragraph 2 which deals with amenity plots) it is said "amenity plots mean the plots reserved for Roads, Hospitals, Schools, Colleges, Libraries, Play Ground, Gardens, Parks, Community Centres, Mosques, Graveyards or for such other public proposes. In light of these provisions the learned counsel has submitted that the plot reserved for a bank certainly cannot be treated as amenity plot. Mr. Sabir Hussain Kazilbash, Advocate for K.D.A. Has fully supported the above contention of Mr. Khalilur Rehman. He has further submitted that in cdunter-affidavit filed by the respondent No,2, it has been specifically stated that the disputed plot is a commercial plot which was regularised in the name of Abdul Rasheed and has been subsequently transferred to the petitioners of the respondent No,4 and that no affidavit- in-rejoinder denying the above facts has been filed by the petitioners. He has further submitted that other plots around thee disputed plot are also commercial plots. He has pointed out that in North of the disputed plot is a Plot No,ST-3 and in South of it is another plot of half an acre. He has pointed out that in Plot ST-3 another multi-storeyed building with the name of ' Al Badar' stands and no grievance has been made by the petitioners with regard to the said building. To this contention of Mr. S.H. Kizalbash, Advocate to petitioner stated that this building Al Badar was already in existence before the petitioners had taken the residence in their abovesaid houses and, therefore, they could not challenge the construction of the said building. However, this admission by itself goes to operate as estoppel against the petitioners. Mr. Muhammad Iqbal Memon, Advocate for the respondent No,3 has submitted that the construction is being raised in accordance with the approved building plan. He has further pointed out that prior to institution of the present petition no notice was served on the respondent No,3 asking for demolition and as such the present petition is liable to be dismissed. He has submitted that the relief sought in the present petition is to direct the respondent to demolish the construction raised by the respondent No,4 which will be in the form of mandamus. He has pointed out that a mandamus cannot be issued unless the said respondent is first approached with such request. Reliance has been placed on the case of District Magistrate, Lahore and another v. Syed Raza Kazim (PLD 1961 SC 178); wherein their Lordships had held that a prayer for grant of writ of mandamus must be preceded by such demand from the concerned authorities.
6. ' In this view of the matter we are clear in our mind that the plot in dispute is a commercial plot and not a plot for public amenity.
7. ' Mr. Khalid Hameed, Advocate for the petitioners has then argued that by raising of this multi- storeyed building the easmentary rights of light and air of the petitioners are effected. The learned counsel has not been able to establish his case on this point within reference to any particular facts but a general plea was taken that the rights of air and light and privacy of the petitioners are effected. As against this Mr. Khalilur Rahman, Advocate has contended that the said building is at a distance from the houses of the petitioners and there is a sixty feet vide road intervening. He has further referred to the photographs placed on record alongwith further affidavit filed by the petitioner on 19-5-1993 which show that the building in question was not constructed at that time with structure raised on first floor. These photographs are five in number and are placed at pages 97, 99 and 101 of the present petition. These photographs show that two other multi-storeyed buildings of ground plus four are adjacent to the building being constructed on plot in dispute and are opposite the residential houses of the petitioners. These photographs also show that there is sixty feet vide road in-between. Thus, it can certainly be said that no question of the violation of the right of privacy accrues. The learned counsel has placed reliance on the case of Belawal Ali Zardari v. K.D.A. And others (PLD 1962 Karachi 67), wherein the application for grant of an injunction was dismissed and it was observed that there were a large number of multi-storeyed building around plaintiffs' houses and that the privacy inside the houses could be maintained by putting up curtains at doors and windows and that any prohibitory order so as to indoor maintenance or privacy and seculations beyond the covered up area of the house into the passage law etc. Would neither be practicable nor justifiable. In such circumstances since the petitioners admittedly occupy the said residential houses in presence of all the other multi-storeyed buildings adjacent to the building in dispute, they cannot claim such right of privacy etc. In the present petition.
8. Accordingly, we find no substance, in the present case. The petition is liable to be dismissed.
9. ' Now we take up the case with regard to the breach of the interim orders passed earlier. It may be observed that the present petition was instituted on 21-3-1993 but the interim orders directing the status quo to be maintained were passed on 12-10-1993. Photographs are in the record showing that the building being constructed on the plot in dispute was only up to the level of the ground floor and the structure of the floor had been raised. Photographs have been placed on record on 19-54993 which show that shuttering has been put and the structure of the first floor has been raised. It was five months after these photographs that the order was passed directing the status quo to be maintained and there being no interim order the respondent No,4 continued with his work during these five months. Obviously during these five months substantial construction could have been raised. The Nazir had inspected the site and submitted a report on 31-1-1994 which shows that the construction had been raised up to the level of third floor which involves the structural work. The building comprised of ground, mezanine and the floors. There is nothing on the record that such construction was raised by the respondent No, 4 after the interim orders passed ' by this Court on 12-10-1993. Thus, it could not be held that any breach of the said order has been committed.
10. ' For the reasons discussed above, we find no substance in this Constitution petition which is accordingly dismissed with no order as to costs alongwith the two miscellaneous applications. The above are the reasons for the short order announced by us in Court on 24-10-1994.