' RANA BHAGWAN DAS, J.---Leave to appeal is sought against the judgment/order of the learned Sindh High Court dismissing Constitution Petition No.D-1794 of 1995 filed by the petitioners impugning the action of the Karachi Building Control Authority (hereinafter referred to as the KBCA) in sealing the premises of the petitioners in Hashmi Electronics Centre situated on Plot No.18, P.R.2, Abdullah Haroon Road, Karachi, and seeking a direction for removal of seals from the said premises.
2. Petitioners claim to be purchasers of their respective premises in Hashmi Electronics Centre. This building was constructed on a piece of land at Abdullah Haroon Road, Karachi by the builders without the approval of building plan and without obtaining occupancy certificate from the KBCA as required by section 6 of the Sindh Buildings Control Ordinance, 1979 (hereinafter referred to as the Ordinance). Relevant portion of section 6 reads as under:-- "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....
Explanation......
(2) No building mentioned in subsection (1) shall be occupied by any person or shall be allowed by the builder to be occupied, before the Authority has, on application of the occupant or owner, issued occupancy certificate, in such manner as may be prescribed.
(3)
(4)
(6) .................................
3. Petitioners impugned the action of the respondent KBCA and its functionaries on the premises that the notice dated 12-1-1995 addressed to M/s. Hashmi Electronics Centre only complained of misuse/unauthorized use of car parking and directed its restoration as approved by the KBCA. The notice evidently issued to the builders/owners of the Project called upon the addressee to restore the car parking for public use failing which the same was to be done by the KBCA at their expenses in addition to sealing of the premises or ejectment from the premises in terms of section 7-A of the Ordinance as amended. It may be pertinent to observe that before this notice respondent KBCA by notice dated 25-9-1994 had called upon the builders to demolish the unauthorised construction failing which it would be sealed. Quite conveniently petitioners suppressed this material fact and made no mention of it. Section 7-A of the Ordinance may be reproduced hereunder for the sake of advantage and ready reference:-- "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."
4. While the aforesaid notice does not seem to have been replied by the builder, petitioners through their counsel issued a telegraphic notice dated 2-9-1995 to the respondents claiming to be occupants and owners of the premises on the ground floor as well as in the basement of the Project. They took serious exception to the act of sealing of the premises on 31-8-1995 in their absence without any prior notice and an opportunity of hearing. Finding no response to the legal notice petitioners invoked the Constitutional jurisdiction of the Sindh High Court on the grounds, inter alia, that the impugned action of sealing the premises was unauthorized and unwarranted by law; that they were bona fide purchasers of the premises, therefore, the impugned action was without any lawful authority against the principles of natural justice and of no legal effect.
5. Case of the respondents as spelt out from their parawise comments and the impugned judgment appears to be that the Building Complex had been constructed without approval of any building plan as the approval of architectural plan did not authorise a builder to raise construction of the Project. It was urged that the builders, without any approved building plan, had illegally constructed 29 shops and godowns in the basement, ground floor and two upper storeys.
Accordingly, a notice dated 25-9-1994 was served on the builders to demolish the unauthorised construction failing which the building was to be sealed in terms of section 7-A of the Ordinance.
6. With the institution of the writ petition as an ad interim measure High Court directed temporary desealing of the premises of the petitioners in order to enable them to remove such of their goods as may be desired and after such removal premises were ordered to be resealed. On the basis of this order while the premises were desealed second part of the order was not complied with by the parties for the reasons best known to them. In this petition for leave to appeal an ad interim order was passed by a learned Judges in Chambers directing maintenance of status quo till the hearing of this petition which has been in force since 16-7-1998.
7. Learned counsel for the petitioners strenuously urged that the impugned action of the respondents was not in conformity with the impugned notice dated 2-1-1995 which only suggested unauthorized use of the parking space in the basement. Learned counsel, however, did not advert to the show-cause notice dated 25-9-1994 earlier issued to the builders as observed earlier.
Leaned counsel further contended that the petitioners were bona fide purchasers of their respective shops and thus, entitled to a notice before the impugned action inasmuch as they were unaware of the factual position whether the builders had obtained approval of the building plan.
Learned counsel canceded that occupancy certificate as contemplated in law was not obtained by the builders before handing over possession of the premises but he vehemently urged that the petitioners having acquired valuable rights in the property could not be deprived of their right to livelihood without a show-cause notice and without an opportunity of hearing.
8. "Suffice it to say, petitioners having not verified the right, interest and title of the vendors and having occupied the premises without obtaining occupancy certificate from KBCA cannot claim to have acquired a perfect and marketable title to the premises. It was incumbent upon them to be vigilant and over cautious in view of mushroom growth of illegal buildings to find out whether the Project had been constructed with due approval and sanction of KBCA and whether requisite occupancy certificate had been obtained from the KBCA as mandated by law. ##TE ## "By not taking care and caution to ascertain the title of the vendors, the petitioners can at best be said to have acquired a defective and unenforceable right to property at their own cost and risk. There is a well-known maxim of law relating to acquisition of property rights namely "Buyer be beware" which was obviously not adverted to by the petitioners. Since they were not put into possession of their respective premises as per amended law, they had stepped into the shoes of the builders and could hardly be said to be entitled to the issuance of a show-cause notice within the spirit of law. Learned High Court being fully mindful of these circumstances was right in making an observation that for all practical purposes notice issued to the builders was in effect a notice to the petitioners. The plea of bona fide purchase can hardly attract equities in favour of the petitioners who would be deemed to be fully aware of the short-comings and lapses on the part of the builders from whom they purportedly acquired their right and interest to properly.
A reasonable possibility of their connivance with the builders in occupation of an illegal building cannot be altogether excluded in the circumstances. Even officials of KBCA seem to be indirectly involved in this nefarious deal by ignoring to take timely notice of illegal constructions in the City of Karachi.
9. Learned High Court relied upon the judgment in the case of Muhammad Aslam Gatta v. Karachi Building Control Authority (1998 M LD 544), (inadvertently typed as 1989 M LD 544) dealing with the agreements opposed to public policy as contemplated by section 23 of the Contract Act. In the reported case, a learned Single Judge of the Sindh High Court observed that in the face of specific prohibition contained in subsection (2) of section 6 of the Ordinance that no building mentioned in subsection (1) shall be occupied by any person or shall be allowed by the builder to be occupied by any person unless on an application of the occupant or owner the KBCA has issued occupancy certificate, submission that agreements of purchase between the builders and the purchasers, prior to completion of the construction were not hit by the provisions of section 6(2) of the Ordinance was not correct. Learned counsel seriously attempted to assail this observation followed by learned Judges of the Division Bench of the High Court by stating that in the city of Karachi there are a large number of Projects in which the people are lured to obtain allotments of shops, godowns and apartments in the under-construction building complexes. Be that as it may, it may be pertinent to observe that if the object of an agreement is to defeat the object of law the agreement may be rendered illegal and void it being against public policy. In the peculiar facts of this case in which the petitioners did not produce their title documents it would be difficult to say that they had obtained any valid and legal right, interest and title to property or that the contracts entered into by them were bona fide. At any rate, the petitioners having come to know about the notices issued to the builders and having agitated their rights before the High Court for the last five years do not appear to have equities in their favour and cannot be permitted to say al this stage that they were condemned unheard or seriously prejudiced in their defence.
10. Aforesaid view has been taken in a number of cases by the Sindh High Court which view was duly affirmed by this Court from time to time. Although in view of clear mandate of law contained in the statute itself it may not be necessary to refer many cases on the subject yet it may not be out of place to cite decided cases namely Hawa Bai v. Haji Ahmed (1987 CLC 558), Qasimabad Enterprises v. Province of Sindh (1997 CLC 1246), both by two different Single Judges of the Sindh High Court, Shaukat Ali Qadri v. Karachi Building Control Authority (1998 CLC 1387), a Division Bench case from the Sindh High Court, Zubaida A. Sattar v. Karachi Building Control Authority (1997 SCMR 243) and Muhammad Khurshid Abbasi v. Administrator/Assistant Commissioner (1999 SCM R 2224).
11. No other plea was urged. Consequently, in view of aforesaid discussion this petition being devoid of any merit is hereby dismissed. Leave to appeal is accordingly refused.