1. ABDUL MAJID KHANZADA, J.---This Constitutional petition calls into question the raising of illegal construction by respondents Nos.2 and 3 over plot bearing S. No.51, Sheet W.O.-2 (W.O.-2/51), Princess Street (Chand Bibi Road), Karachi, with the connivance of the staff of respondent No. 1.
2. The facts leading to this petition are that the property bearing Survey No.51, Sheet W.O.-2 (W.O.-2/51) was comprising of ground plus three floors. On ground floor there were three premises G-1, G-2 and G-3 and a main entrance facing Princess Street (Chand Bibi Road) measuring about 26.74 Sq.Yds. On ground floor as well as on 1st and 2nd floors leading towards stair--case in common use of all the occupants of the upper floors including the petitioner. The petitioner is the co-owner of 3rd floor, having acquired the same by way of inheritance from late Abdul Qadir Mho 11ad acquired the same by way of purchase through auction from the Settlement Department.
3. That the entire building was declared as dangerous by the concerned authority vide their letter dated 7-11-1979 and in pursuance thereof the entire building except the ground floor was demolished due to the status quo order obtained by the occupants of the ground floor. However, the same was also demolished after the status quo order was vacated. The respondent Nos.2 and 3 purchased premises Nos.G-1, G-2 and G-3 on ground floor and so also first and second floors of the said demolished building. Anyhow, the petitioner did not sell his portion of the said building i.e. The 3rd floor, in spite of demand and hard pressure of respondents Nos.2 and 3.
4. That the respondent. Nos.2 and 3 who are contractors and influential persons were bent upon to raise the construction illegally and unauthorisedly in such a manner that the petitioner would certainly be deprived of his rights to use, occupy, possess and enjoy his property by the active cooperation of the staff of respondent No. l who being under obligation have not acted accordingly and have failed to perform their statutory obligations despite the repeated requests and reminders and notice through his advocate.
5. That the conduct of the respondent No. l amounts to refusal on his part to perform his functions and duties in accordance with law and therefore patently illegal and contrary to the provisions of the statutes whereunder the said respondent No. l is vested with powers to check, demolish, remove and seal the unauthorised and illegal construction. Hence this petition, with following prayers:--- "(A) Direct respondent No.1 above-named to act in accordance with law and to--
(i) demolish all and entire illegal and unauthorised constructions on plot bearing Survey No.51, Sheet No.2 in between Chand Bibi Road and Najmuddin Street Karachi; and
(ii) abstain from regularising/approving/condoning construction on the aforesaid plot without the consent of petitioner and/or abstain from allowing in any manner any construction prejudicing the rights of the petitioner and/or to cancel the plan if any approved without the consent of the petitioner;
(B) Cost of the above petition may please by granted to the petitioner;
(C) Any other, further and/or better relief as may deem tit, expedient and appropriate in circumstances of petition may please be granted to the petitioner."'
6. Respondent No. 1 has filed his parawise comments denying the allegations of connivance of his staff with respondents Nos.2 and 3 in carrying out illegal and unauthorised constructions on the plot in dispute. He disclosed that a notice was served upon respondents Nos.2 and 3 in respect of the said illegal construction but further action could not be taken, due to stay order granted in F.C.
7. Suit No.458 of 1992 filed by respondents Nos.2 and 3. He admitted that no plan was got approved from his department by respondents Nos.2 and 3 and that the construction raised by them is without the consent, permission or connivance of his department.
8. Respondents Nos.2 and 3 have also filed their written objections to the above petition, denying the allegations made by the petitioners and have challenged the maintainability of the petition on the ground that other adequate remedy is available to the petitioner under section 16 of the S.B.C, Ordinance, 1979. According to them the petitioner can file a civil suit under section 42 of the Specific Relief Act, etc. And that the petitioner can become it party to the Suit No.458 of 1992 filed by them, which is pending before tile Court of VIth Sr. Civil Judge, Karachi-South, in which stay order has been granted against respondent No. l and that they have already made application under Order 1, rule 10, C.P.C for joining the petitioner as necessary party in that suit. They have admitted that they have not got any plan approved for the construction raised by them on the disputed plot, from respondent No. 1 or any other competent authority. For this, they have stated that they were granted verbal permission and the construction was raised within the sight and knowledge of the staff of respondent No.1, who never raised any objection to the said construction etc. We have heard the petitioner Dr. Muhammad Farooq in person and Mr M. Iqbal Memon, advocate for respondent No. 1. None present for respondents Nos.2 and 3 who are otherwise represented by Mr. Mufti Abdul Latif Qureshi, Advocate.
9. Dr. Muhammad Farooq, the petitioner No. 1, has argued the same facts mentioned above. His main grievance is that respondents Nos.2 and 3 have encroached upon the area on the ground floor in which the stair-case existed and was in common use of the occupation of ground floor and other three floors. He also submitted that stay order granted to the respondents Nos.2 and 3 in Suit No.458 of 1992 has not only been vacated by dismissing application under Order 39, rules 1 and 2, C.P.C. But the said suit has also been dismissed under Order 7, rule 11, C.P.C. And respondents Nos.2 and 3 have not preferred any appeal against the said order, hence it attained finality. He lastly submitted that in. Spite of the dismissal of the said suit, respondent No. 1 is not taking any action against respondents Nos.2 and 3 as provided under S.B.C. Ordinance, 1979, towards demolition of the illegal and unauthorised construction on the plot in question and thereby respondent No. l has failed to exercise his duties in accordance with law.
10. Mr. M. Iqbal Memon, learned advocate for respondent No. l argued that respondent No. l is not party in the alleged unauthorised construction raised by respondents Nos.2 and 3. Hr further submitted that neither respondents Nos.2 and 3 have submitted any building plan for its approval nor the same is approved by respondent No.1. He also argued that neither the alleged unauthorised construction is regularised by respondent No.1 nor it shall be regularised, without the consent of the petitioner, and in violation of the provisions of the S.B.C. Ordinance, 1979. He lastly undertakes that respondent No. 1, shall take all lawful actions against respondents Nos.2 and 3 within the knowledge of the petitioner.
11. Respondents Nos.2 and 3 though represented by Mr. Mufti Abdul Latif Qureshi, Advocate, have remained absent and none has appeared on their behalf, its such we have nothing in reply to the case of the petitioner, from their side, excepting their written objections to the main petition filed and placed on the record of this petition.
12. We have given our anxious thoughts to the circumstances of the case and have perused the record. It is an admitted position that respondents Nos.2 and 3 have raised the constructions on ground floor and the first floor under the cover of stay order obtained in Suit No.458 of 1992, without the approval of building plan from respondent No.1. The plea of respondents Nos.2 and 3 that they were orally permitted by respondent No.1, after the old building was demolished, "to raise the construction without approval of plan, does not appeal to a man of common prudence and appears to have been falsely advanced. Even if it is so, then too, the construction raised by them in violation of S.B.C. Ordinance, 1979, cannot be termed as lawful.
13. We would like to add that if respondents Nos.2 and 3 file a plan for regularisation of their construction raised by them on the plot in question and so also for 2nd floor, the same shall not be accepted by respondent No. l without the written consent and satisfaction of the petitioner, and there shall be no violation of any provision of the S.B.C. Ordinance, 1979. In case the existing construction is regularised with the consent and satisfaction of the petitioner, the respondents Nos.2 and 3 shall be bound down to raise the 2nd floor construction as per approved plan, to enable the petitioner to raise construction on his 3rd floor of the building in question.