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Constitutional Petition No. D‑1049 of 1980, decided on Ist December, 1981.

‑Art. 199 read with Provisional Constitution Order (I of 1981), Art. 15 (4) and Sind Buildings Control Ordinance (V of 1979), S. 16‑Jurisdiction of High Court under Art. 199‑Ouster of‑Deputy Controller of Building (respondent No. 2) withdrawing approval for construction of building without giving opportunity of being heard to petitioner‑Contention that withdrawal letter is neither from Martial Law Authority within meaning of Art. 15 (4) nor instructions contained therein‑Withdrawal of such approval not challenged in appeal under S. 16 of Sind Buildings Control Ordinance (V of 1979)‑Approval withdrawn in compliance with letter purportedly signed on behalf of Martial Law Administrator‑Held, in circumstances, High Court would refrain from expressing opinion as to competency or otherwise of Cons titution petition and decline to express itself on merits‑Open to peti tioner to avail of remedy of appeal under S. 16 of Ordinance.‑[Appeal (civil)].

Arif Husssin for Petitioners.

Mirza Yuqoob Baig for Respondents.

;Date of hearing Ist December, 1981.

The facts leading up to this Constitutional Petition No, 1049/80, briefly stated are, that the petitioner is the transferee of plot No. 112/g, Survey Sheet Bath Island, Karachi. He was granted approval for construction of ground floor plus three upper floors with 50 % covered area on the plot. He was also granted No‑Objection Certificate for advertisement for sale of flats. The petitioner acting upon approvals started the sale of flats and actually started to work on the site. On 7‑1‑1980 the petitioner received a letter from Deputy Controller of the Master Plan Department of respon dent No. 2, purporting to suspend the approval. of the plan of the building without assigning any reason. On 24‑3‑1980, another letter was received by the petitioner from the Deputy Controller of the respondent No. 2, whereby the approval granted ‑was withheld till the policy had been decided by the competent authority. Thereafter without giving the p6titioner an opportunity of being heard, vide' notice dated 4‑5‑1980 respondent No. 2 wrote to the petitioner as follows :

"You are advised to submit the revised plan according to the following rules decided by the competent authority :‑

(1) Covered area 1/3.

(2) Ground and one upper floor.

The approval granted vide No. MPEC‑II/BP/334/79/292, is hereby withdrawn."

The petitioner has contended that the notice dated 4‑5‑1980 is illegal, arbitrary and without lawful authority. He has, therefore, come in this petition.

2. The petition has been contested on behalf of the respondents. It has been mainly contended on their behalf that the withdrawal of the approval once granted was not challenged in appeal under section 16 of the Sind Buildings Control Ordinance, 1979, and that since the work on the site had not yet commenced the approval granted could legally be withdrawn vide letter dated 4‑5‑1980 issued by the Deputy Controller of Buildings under the Sind Buildings Control Ordinance, 1979. It has further been contended that the action taken was in compliance with the instructions of the Martial Law Administration, Zone "C" and, therefore, the petition was barred under sec tion 15 4) of the Provisional Constitution Order, 1981. ,

3. We have heard the learned counsel for the parties Mr. Arif Hussain for the petitioner and Mr. Mirza Yakoob Baig for the respondents. It is contended on behalf of the petitioner that the work on the site had commenced in pursuance of the original plan vide K. M. C. approval letter dated 12‑4‑1979. There are allegations and counter‑allegations is that respect: It has also been contended on behalf of the petitioner that the original approval of the plan dated 12‑4‑1979 had become final as it was not challenged in appeal and, therefore, it could not be revised vide notice dated 4‑5‑1980. On the other hand it has been contended on behalf of the respondents that the jurisdiction of this Court is barred in this Writ Petition, in view of the letter dated 29‑3‑1980 purported to have been signed on behalf of the Martial Law Administrator, Zone "C" addressed to the Chief Secretary, Government of Sind and that no appeal has been filed on behalf of the petitioner. The relevant portion of the letter reads as follows :‑

"Covered area.‑. 50 % of the area has been allowed to be utilized as covered area against the normal authorization of 1/3rd, as it is the case in other Housing Societies. This irregularity should be rectified and suitable instructions should be passed on to the concerned Depart ment/agency for immediate implementation of rules/laws on the subject.

Number of Floors.‑Contrary to the normal authorizations of ground plus one, a special provision was made through an irregular Resolution for allowing ground plus three storeys. To rectify the position following action will be taken :‑

(a) Plans in respect of those buildings whose construction has not been undertaken, to be approved as per rules/laws applicable to other Housing Societies.

(b) Plans which have already been approved for ground plus three storeys and construction has commenced but not yet completed will be in accordance with the existing rules."

The contention on behalf of the petitioner is, that the letter is neither from the Martial Law Authority within the meaning of section 15 (4) of the Provisional Constitution Order, 1981, nor the instructions contained therein, would mean direction to revise the plans already approved, in terms of notice dated 4‑5‑1980. Since, it is an admitted position that the petitioner has not availed of the remedy by way of appeal as provided by section 16 of the Sind Buildings Control Ordinance, 1979, we would refrain from expressing our opinion as to the competency or otherwise of the petition in view of the letter dated 29‑3‑1980, purported to have been signed on behalf of Martial Law Administrator, Zone "C". We would, therefore, without expressing ourselves on the merits of the case, leave it open to the petitioner to avail of the remedy of appeal under section 16 of the Sind Buildings Control Ordi nance 1979, if he so chooses and in the circumstances of the instant case, the concerned authorities shall consider the same.

With the above observations, this petition is dismissed, with no order as to costs.

K. M. A. Petition dismissed.

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