ORDER SHEET
IN
THE HIGH COURT OF SINDH, KARACHI
C.Ps.
Nos.D-2131 of 2010 and 297/2013
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DATE ORDER WITH SIGNATURE(S) OF JUDGE(S)
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1) For
orders on Misc. No.11126/2013
2) For
orders on Misc. No.2282/2011 (u/s 151)
3) For
Katcha Peshi.
4) For
hearing of Misc. No.8739/2010
For
orders on CMA No.7862/2013 (in CP No.D-297/2013)
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29.05.2013
Mr. Khawaja Shamsul Islam,
Advocate for the Petitioner
Mr. Abid Sheerazi,
Advocate for the Respondent
Mr. Shahid
Jamiluddin, Advocate for SBCA a/w Waqar Mehmood, Deputy Director
Mr. Khursheed Javed,
Advocate for KMC
Mr. Jameel Ahmed,
Advocate for Katchi Abadies Department
Ashfaq Ahmed Baloch,
SHO, P.S. Mehmoodabad and SIP Haji Ahmed
Mr. Muhammad Akbar,
Advocate for Intervener
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1) Mr. Khursheed
Javed, says that CDGK will deposit cost of Rs.5000/- as directed by this Court
vide order dated 15.01.2013, Application consequently is dismissed.
2) Mr. Khawaja
Shamsul Islam, learned counsel for the petitioner, has pointed out that this
application was dismissed by this Court vide order dated 24.02.2011 and the
office has wrongly filed this application for order. We have verified the counsel’s
statement and have found it correct. This application has been wrongly listed for
orders as it already stands dismissed on 24.02.2011, therefore, does not
require further orders.
Counsel for
the respondents Nos.5 to 8 while inviting our attention to order dated
02.12.2010 submits that since there is no order in the instant petition directing
demolition of the construction raised without approved plan and further that
since the construction was raised by the respondents in Katchi Abadi,
therefore, the Sindh Building Control Ordinance, 1979 has no application on
such construction and the prayer in the petition to the extent of respondents
Nos.5 to 8 be rejected. He further contends that the lease issued by the KMC in
favour of respondent No.5 has already regularized the construction as well as
the unauthorized possession therefore there was no need of occasion for the respondents
to apply for regularization or for getting the plan of construction approved.
On the other hand, Khawaja Shamsul Islam while placing reliance on the orders
of this Court in the case of Nek Muhammad vs. Maqbool Ahmed (2004 YLR 2777)
contends that the issue regarding unauthorized construction on Katchi Abadi
stands settled as a Division Bench of this Court has held in the stated order
that, “the
provisions of the Building Control Ordinance are clearly applicable even if it
is assumed that the building raised by the respondents falls within a Katchi
Abadi”.
Additionally, we have examined clause 4.1 of the lease
referred to by the counsel with the contention that the KMC has regularized the
construction as well, the clause only places an embargo on the lessee that
structure on the plot, if any, shall be used for only residential purposes and
does not even specify the regularization of the structure. The contention
totally appears to be misconceived.
As to order
dated 02.12.2010, no doubt it records the statement of the counsel for the SBCA
but it specifies the proposition of the law viz. the constructions, which are
raised without approved plan are to be dealt with in terms of section 7-A of
the Ordinance, 1979. The contention that no order has been passed directing
demolition of unauthorized construction further is misconceived as the law
itself provides how the unauthorized construction is to be dealt with.
Additionally, series of orders passed thereafter indicates that repeatedly compliance report was sought from SBCA and in response SBCA prayed for police
cover in order to complete the action. Even today Mr. Shahid Jameeluddin,
learned counsel appearing for SBCA says that the compliance would be effected
till 10th June 2013 and report will be filed thereafter immediately.
CMA
No.7862/2013 (in C.P. No.D-297/2013):
Counsel for the applicant says that petitioner has nothing to do with Plot No.494
as specified in the petition but under the garb of said order SBCA has threatened
to demolish the construction of Plot No.R-494, which is owned by the applicant.
He, therefore, prays that the applicant be impleaded as respondent and not only
a proper opportunity of hearing be allowed but he be permitted to file his
defence. On the other hand, Mr. Khawaja Shamsul Islam says that it was just a
typographical error in the petition wherein the petitioner has mentioned Plot No.R-299,
which is in fact R-494 and it has been corrected by the Nazir in his report.
Be that as
it may, we have asked the counsel as to whether the applicant, who claimed to
be the owner of Plot No.R-494, has obtained permission for the construction of
building from SBCA, the answer is in negative. Counsel states that double
storied construction was raised some 10 years back and why the floor of second
floor was being raised the instant petition has been filed. However, he says
that petitioner has applied for regularization. Though the photographs on
record and the Nazir report reflect that the construction covers C.O.S. In the
circumstances, we do not find any worth in this application and while
dismissing this application in limine would direct that the authority shall
first scrutinize as to whether the petitioner has applied for regularization
and if such application is available in their record then the action in terms
of section 7-A of the Sindh Building Control Ordinance, 1979 would be taken
only if their application is rejected. However, in case there is no such
application then the SBCA shall act as per law and submit compliance report within
a week’s time after 10.06.2013.
JUDGE
JUDGE
Gulsher/PA