' SABIHUDDIN AHMED, I. Through this petition the petitioners have complained against the construction of a multi-storeyed building raised by the respondents Nos.13 to 16 on Plot No, G.R.E.-395/3, Pedro Desoza tioad, Karachi in violation of the approved plan, Building and Town Planning Regulations and other legal requirements. It is alleged that the respondents Nos.13 to 16 in collusion with the relevant statutory functionaries, managed to construct the building in flagrant violation of the requirements of law and various reliefs seeking performance of duties ordained by law upon statutory functionaries have been claimed. ,
2. The petitioners Nos.1 to 4 are admittedly residents of the locality whereas the petitioners Nos. 5 and 6 have joined bonopublico. Since the petition on behalf of the first four petitioners is maintainable we have not considered the question of locus standi of the petitioners Nos. 5 and 6 which can be decided in an appropriate case if so raised. Be that as it may, the petitioners have alleged that the Deputy Commissioner, Karachi South as representative of the original lessor i,e, Board of Revenue had issued a notification dated 1-9-1998 stipulating that no building in the area of a height exceeding ground one storey would be allowed to be constructed in the area. Moreover, on 10th September, 1991 the Provincial Government issued a notification confirming a decision of the Quaid-i-Azam's Mazar Management Board to the effect that no building will be constructed above podium level of the Mazar of Quaid-e-Azam (91 feet above sea level) within a radious of 6 furlongs from the Mazar and the building in question falls within such radious and exceeds the height of the podium. In any event the building plan approved by the respondent No,1 (Karachi Building Control Authority) authorised only construction of a ground + 1 floor building on the aforesaid plot. Copies of various notices issued by the respondent No,1 to the respondents Nos.13 to 16 have also been annexed to the memo of petition.
3. The petitioners have alleged, inter alia, that the following violations of the approved plan/building regulations have been commuted by the respondents Nos. 13 to 16 in respect of the aforesaid building:
(a) Against an approved plan of ground + one floor building respondents constructed a four floor complex.
(b) The requirements relating to compulsory open space were violated.
(c) A basement was constructed without approval.
(d) The built-up area exceeds prescribed plot ratio i,e, the relationship between the area of the plot and the gross floor area of the building.
(e) Cut-line area was covered so as to prevent road widening of Pedro Desoza Road.
4. The petitioners further alleged that on 4-10-1995 the respondent No,1 issued a show-cause notice to the respondents Nos.13 to 14 stating that the excavation of basement was contrary to the approved plan. On 16-10-1995 the aforesaid respondents addressed a letter to the respondent No,4 (Commissioner Karachi) stating That the construction raised by the respondent No,13 and others was unauthorised inasmuch as all compulsory open space had been covered, basement was constructed without approval and the building was converted from residential unit to a multi- storeyed structure. The respondent No,4 was requested to restrain carrying out of unauthorised construction at the partly of legal action. On 23-10-1995 the approved building plan was withdrawn and on 9-11-1995 a public notice was published in Daily "Dawn" on behalf of the aforesaid respondent No,1 stating that unauthorised construction was being carried out inter alia on the aforesaid plot, under the shelter of status quo order. The petitioners further alleged that the building was being unlawfully constructed without the supervision of a licensed architect inasmuch as the licence of architect Kazi Ahsanuddin, who was initially designated to supervise construction had been suspended by the respondent No,1 on 28-3-1997.
5. A counter-affidavit denying allegations in the memo. Of penton was filed on behalf of the respondents Nos. 13 to 15. The allegations about restrictions relating to construction within a 6 furlongs radious of the Quaid-e-Azam's Mom were denied for want of knowledge. It was admitted that a ban on construction of buildings exceeding ground + one floor had been imposed by the Deputy Commissioner, but it was alleged that the same was lifted in 1996. No notification to the aforesaid effect, however, was placed on record. Nevertheless, it was alleged that after the lifting of the ban the petitioners submitted a revised plan on 13-5-1996 proposing construction of a ground + four floors building to the respondent No,1. Though it was not claimed that the revised plan had been approved by the respondent No,1, it was urged that under para. 13(3) of the Karachi Building and Town Planning Regulation a plan which was not specifically rejected within 60 days its submission would be deemed to be duly approved. It was further urged that the respondents had deposited an amount of Rs,7,96,032 being approval fee of the revised plan and, therefore, it ought to be deemed to have been approved. It was, therefore, contended that the allegation that building was illegal was untenable.
6. In the aforesaid counter-affidavit the respondents Nos. 13 to 15, however, did not specifically assert that the subsequent proposed plan dated 13-5-1996 was in conformity with the requirements of Building Regulations. The allegation about illegalities pertaining to compulsory open space etc. Was also not denied. The allegation of absence of professional supervision by licensed engineer/architect was denied, but it was only contended that respondents had no knowledge about cancellation of licence of Kazi Ahsanuddin. However, it was not claimed that any other engineer or architect was engaged to supervise construction. Moreover, it was alleged that the apartments had already been booked/sold off, though the allegation that N.O.C./occupancy certificate for doing so was not obtained from the respondent No,1 was not denied.
7. No counter-affidavit/comments, however, were filed by the respondent No,
1. Nevertheless consignment with their notices addressed to the respondents Nos. 13 to 16 as well as their public notices appearing in the Daily "Dawn" dated 10-1-1997, the respondent No,1 maintained that construction of the building was in violation of the approved plan. Indeed the order sheet shows that on 24-4-1998, Mr. Muhammad Iqbal Memon learned counsel for the respondent No,1 had submitted that the building in question had been constructed in violation of approved plan and Regulations and that the aforesaid respondent was prepared to take an appropriate action in accordance with law.
8. It may also be pertinent to mention, as can be discerned from the memo. Of petition and the 'counter-affidavit of the respondents Nos.13 to 15 as well as the order sheet in this petition that the respondents Nos.13 and 14 had filed a civil suit bearing No,604 of 1997 on the original side of this Court seeking to restrain the respondent No,1 from demolishing the construction raised and ad interim orders were passed in their favour. The petitioners applied for being impleaded as parties to the suit and also moved an application for vacation of the interim order. While issuing notice to the parties on 22-7-1997 the learned Single Judge on the original side passed an ad interim order restraining the respondents Nos.13 and 14 (plaintiffs in the suit) from effecting further construction.
Thereupon, the aforesaid respondents applied for withdrawal of the suit. The application was opposed by the petitioners/intervenors alleging that it was mala fide and designed to circumvent the order dated 22-7-1997 as is evident from a copy of the order which has been placed on record.
The respondents/ plaintiffs contended that prayer for withdrawal was unconditional and the right to unconditionally withdraw proceedings could not be curtailed. The learned Single Judge observed that if the Court finds that motion for withdrawal is tainted with mala fides the same can be declined or the plaintiffs be put to terms. Moreover, in cases where public interest was involved even unconditional withdrawal could not be permitted if circumstances so required. Nevertheless keeping in view the fact that this petition had already been filed, the learned Single Judge with the object of avoiding multiplicity of proceedings allowed the withdrawal but directed that the order restraining the plaintiffs from effect in, further construction would continue to remain operative for another 10 days. On 12-8-1997 an interim order restraining the respondents from effecting further construction was passed in this case by Division Bench of this Court.
9. Though the respondents Nos.13 to 15 who are the main respondents interested in opposing this petition had filed a detailed counter-affidavit and were presented by M/s. Pertab Rai and Dal M.S. Rahi, Advocates on different dates of hearings, no appearance was made on their behalf on 12-3- 1999 despite the fact that we waited for them for quite some time. In the circumstances and keeping in view the factual and legal position emerging from the record, we decided to hear the counsel present and announced a short order in Court.
' M." From the material on record the contention of the petitioners as well as the respondent No,1 it is quite evident that apart from the fact that the approved plan dated 15-5-1995 was subsequently cancelled, it is undisputed that the building constructed was in violation of the aforesaid plan. The respondents Nos. 13 to 15 have themselves admitted that whereas the original plan was approved for constructing a ground + one floor building they proceeded to construct a ground + three- apartments complex. The only defence taken up was that the aforesaid respondents submitted a revised plan on 13-5-1996 and deposited scrutiny .Fee of a substantial amount. No communication of rejection of the aforesaid building plan was made and consequently the plan was deemed to have been approved under para. 13(3) of the Building and Town Planning Regulation, hence the building raised was not illegal.
11. No doubt Regulation 13(3) of the Building Control Regulation provides that in cape no order is passed on an application for permission to carry out building works within 60 days of its receipt, it shall be deemed to have been sanctioned to the extent to which it does not contravene the provisions of the Regulation, the master plan or site development scheme, if any. The aforesaid provision, however, also provides that in such case the building works may be carried out after giving due notice to the concerned authority on the prescribed form. The respondents have nowhere alleged that such notice, which in our humble view is mandatory, was ever given.
Moreover, Mr. Naimur Rehman, Advocate pointed out that the multi-storeyed construction raised was also violative of the plot-ratio and open space requirements laid down in the Town Planning Regulation. This position has not been controverted either by the respondent No,1 or by the respondents Nos. 13 to 15 in their counter-affidavit. As is evident from the provision of Regulation 13(3), a plan, whose approval or disapproval has not been communicated to the applicant can only be deemed to be approved to the extent to which it conforms to the Building Regulation.
Moreover, in response to specific allegations that the building was not constructed under professional supervision, which is a mandatory requirement of law in terms of section 7(2) of the Sindh Buildings Control Ordinance in respect of buildings having more than two storeys. The respondents Nos.13 to 15 have not even disclosed the name of the inspecting engineer under whose supervision the building in question was raised. They do not even appear to be aware of the fact that the professional licence of their architect Qazi Ahsanuddin was suspended on 28-3-1997 whereas building continued to remain under construction till much latter as is inter alia evident from Nazir's report dated 9-7-1997. In our view construction of high=rise building under strict professional supervision is of utmost importance for prevention of any danger to the public, the mandatory provision of law in this respect need to be strictly enforced.
12. For the foregoing reasons we are convinced that the building in question having been raised unlawfully is liable to be demolished by the respondent No,1 in the exercise of their statutory power conferred in the public interest and the above are our reasons for the short order announced on 12- 3-1999.